          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                    January 2018 Term
                                    _______________                            FILED
                                                                           March 14, 2018
                                      No. 16-1067 	                            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.

                                     JEDEDIAH C.,
                                Defendant Below, Petitioner

       ____________________________________________________________

                   Appeal from the Circuit Court of Jackson County 

                     The Honorable Thomas C. Evans, III, Judge 

                            Criminal Action No. 15-F-46 


                                       AFFIRMED 


       ____________________________________________________________

                                Submitted: February 6, 2018
                                  Filed: March 14, 2018

Kevin B. Postalwait, Esq. 	                      Patrick Morrisey, Esq.
Public Defender Corporation 	                    Attorney General
Ripley, West Virginia 	                          Benjamin F. Yancey, III, Esq.
Counsel for the Petitioner 	                     Assistant Attorney General
                                                 Charleston, West Virginia
                                                 Counsel for the Respondent


JUSTICE WALKER delivered the Opinion of the Court.

JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.
                            SYLLABUS BY THE COURT 



      1.      “‘The Supreme Court of Appeals reviews sentencing orders . . . under a

deferential abuse of discretion standard, unless the order violates statutory or

constitutional commands.’ Syl. Pt. 1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d

221 (1997).” Syllabus Point 1, State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011).



      2.      “When a person who has been arrested, but not yet convicted of a crime, is

admitted to pre-trial bail with the condition that he be restricted to home confinement

pursuant to West Virginia Code § 62-1C-2(c) (1992), the home confinement restriction is

not considered the same as actual confinement in a jail, nor is it considered the same as

home confinement under the Home Confinement Act, West Virginia Code §§ 62-11B-1

to -12 (1993). Therefore, the time spent in home confinement when it is a condition of

bail under West Virginia Code § 62-1C-2(c) does not count as credit toward a sentence

subsequently imposed.” Syllabus Point 4, State v. Hughes, 197 W. Va. 518, 476 S.E.2d

189 (1996).



      3.      “Pursuant to the provisions of the Home Incarceration Act, West Virginia

Code §§ 62-11B-1 to -12 (1997 & Supp. 1999), when an offender is placed on home

incarceration as a condition of post-conviction bail, if the terms and conditions imposed

upon the offender are set forth fully in the home incarceration order and encompass, at a

minimum, the mandatory, statutory requirements enunciated in West Virginia Code § 62-


                                            i
11B-5, then the offender is entitled to receive credit toward any sentence imposed for

time spent on home incarceration, whether or not the offender violates the terms and

conditions of home incarceration and whether or not the order specifically references the

Home Incarceration Act.” Syllabus Point 3, State v. McGuire, 207 W. Va. 459, 533

S.E.2d 685 (2000).



      4.     “‘Sentences imposed by the trial court, if within statutory limits and if not

based on some [im]permissible factor, are not subject to appellate review.’ Syllabus point

4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).” Syllabus Point 2, State

v. Booth, 224 W. Va. 307, 685 S.E.2d 701 (2009).




                                            ii
WALKER, Justice:

              Petitioner Jedediah C.1 sexually molested two minor children—including

his son—and attempted to molest a third minor child. He pleaded guilty to sexual abuse

by a parent, incest, and attempt to commit a felony. The Circuit Court of Jackson County

imposed an effective sentence of sixteen to thirty-eight years and denied Petitioner’s

request for credit for time served on home incarceration as a condition of pretrial bail.

Petitioner contends that he should have received credit for time served on home

incarceration and that his sentence was constitutionally disproportionate. We disagree

and affirm the circuit court’s sentencing order.



                I. FACTUAL AND PROCEDURAL BACKGROUND

              Between July 2013 and December 2014, Petitioner sexually molested his

son and one of his son’s friends and attempted to molest another of his son’s friends. All

three children were minors. Petitioner was indicted on five counts of first-degree sexual

assault, five counts of incest, twelve counts of first-degree sexual abuse, fifteen counts of

sexual abuse by a parent, and two counts of sexual abuse by a custodian. Following

Petitioner’s pretrial hearing, he was placed on home incarceration as a condition of

       1
         Consistent with our long-standing practice in cases involving sensitive facts, we
use initials where necessary to protect the identities of those involved in the case. See In
re K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va.
731, 742 S.E.2d 419 (2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761
(2005); State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).



                                             1

pretrial bail, subject to various conditions set forth in the Home Incarceration Program

Participation Agreement (home incarceration agreement). Petitioner spent 281 days on

home incarceration.



              Although Petitioner was facing a thirty-nine-count indictment, the State had

concerns about presenting the victims’ testimonies at trial due to their emotional

difficulties and the nature of the allegations. Thus, Petitioner and the State entered into a

plea agreement on April 22, 2016, and a plea hearing was held on that date. Petitioner

agreed to plead guilty—pursuant to Kennedy v. Frazier2—to one count of sexual abuse

by a parent, one count of incest, and one count of attempt to commit a felony, a lesser-

included offense of first-degree sexual abuse.          The other thirty-six counts were

dismissed. Petitioner filed a motion requesting that his bond and home confinement be

continued until his sentencing date.      The circuit court denied Petitioner’s motion,

rescinding Petitioner’s bond and remanding him to jail pending sentencing.



              Petitioner subsequently was sentenced to an indeterminate term of not less

than ten nor more than twenty years with a fine of $5,000 for the crime of sexual abuse


       2
          Pursuant to Syllabus Point 1 of Kennedy, “An accused may voluntarily,
knowingly and understandingly consent to the imposition of a prison sentence even
though he is unwilling to admit participation in the crime, if he intelligently concludes
that his interests require a guilty plea and the record supports the conclusion that a jury
could convict him.” 178 W.Va. 10, 357 S.E.2d 43 (1987).


                                             2

by a parent, not less than five nor more than fifteen years and a fine of $5,000 for the

crime of incest, and not less than one nor more than three years and a fine of $300 for the

crime of attempt to commit a felony. The sentences were ordered to run consecutively.

The circuit court denied Petitioner credit for any time served on home incarceration as a

condition of pretrial bail on the basis that Petitioner benefited from his plea bargain with

the State. Petitioner now appeals the sentencing order entered on October 13, 2016.



                               II. STANDARD OF REVIEW

                With respect to the standard of review of sentencing orders, this Court has

held that “‘[t]he Supreme Court of Appeals reviews sentencing orders . . . under a

deferential abuse of discretion standard, unless the order violates statutory or

constitutional commands.’ Syl. Pt. 1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d

221 (1997).”3



                                       III. ANALYSIS

                We first address Petitioner’s assertion that the circuit court erred in denying

him credit for time served on home incarceration as a condition of pretrial bail. Petitioner

argues that the terms of his home incarceration, although a condition of pretrial bail,

were identical to the terms imposed in post-conviction home incarcerations which are

       3
           Syl. Pt. 1, State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011).



                                               3

enumerated in West Virginia Code § 62-11B-5 (2014).4


      4
          West Virginia Code § 62-11B-5 provides:

                       An order for home incarceration of an offender under
               section four [§ 62-11B-4] of this article is to include, but not
               be limited to, the following:
                       (1) A requirement that the offender be confined to the
               offender’s home at all times except when the offender is:
                       (A) Working at employment approved by the circuit
               court or magistrate, or traveling to or from approved
               employment;
                       (B) Unemployed and seeking employment approved
               for the offender by the circuit court or magistrate;
                       (C) Undergoing medical, psychiatric, mental health
               treatment, counseling or other treatment programs approved
               for the offender by the circuit court or magistrate;
                       (D) Attending an educational institution or a program
               approved for the offender by the circuit court or magistrate;
                       (E) Attending a regularly scheduled religious service at
               a place of worship;
                       (F) Participating in a community work release or
               community service program approved for the offender by the
               circuit court, in circuit court cases; or
                       (G) Engaging in other activities specifically approved

               for the offender by the circuit court or magistrate. 

                       (2) Notice 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.
                       (3) A requirement that the offender abide by a
               schedule, prepared by the probation officer in circuit court
               cases, or by the supervisor or sheriff in magistrate court cases,
               specifically setting forth the times when the offender may be
               absent from the offender’s home and the locations the
               offender is allowed to be during the scheduled absences.
                       (4) A requirement that the offender is not to commit
               another crime during the period of home incarceration
               ordered by the circuit court or magistrate.
                                                                              (Continued . . .)

                                               4

               In State v. Hughes5, this Court explained the distinction between post-

conviction home confinement pursuant to the Home Confinement Act (the Act)6 and



                       (5) A requirement that the offender obtain approval
               from the probation officer or supervisor or sheriff before the
               offender changes residence or the schedule described in
               subdivision (3) of this section.
                       (6) A requirement that the offender maintain:
                       (A) A working telephone in the offender’s home;
                       (B) If ordered by the circuit court or as ordered by the
               magistrate, an electronic monitoring device in the offender’s
               home, or on the offender’s person, or both; and
                       (C) Electric service in the offender’s home if use of a
               monitoring device is ordered by the circuit court or any time
               home incarceration is ordered by the magistrate.
                       (7) A requirement that the offender pay a home
               incarceration fee set by the circuit court or magistrate. If a
               magistrate orders home incarceration for an offender, the
               magistrate shall follow a fee schedule established by the
               supervising circuit judge in setting the home incarceration
               fee. The magistrate or circuit judge shall consider the
               person’s ability to pay in determining the imposition and
               amount of the fee;
                       (8) A requirement that the offender pay a fee
               authorized by the provisions of section four [§ 62-11C-4],
               article eleven-c of this chapter: Provided, That the magistrate
               or circuit judge considers the person’s ability to pay in
               determining the imposition and amount of the fee; and
                       (9) A requirement that the offender abide by other
               conditions set by the circuit court or by the magistrate.
      5
          197 W. Va. 518, 476 S.E.2d 189 (1996).
      6
        The Act was originally referred to as the “Home Confinement Act.” In 1994, the
Act was redesignated as the “Home Incarceration Act.” See W. Va. Code § 62-11B-1.
Because the defendant in Hughes was granted bail in August 1993, we relied upon the
1993 version of the Home Confinement Act, West Virginia Code §§ 62-11B-1 to -12
(1993), utilizing the term “home confinement” in that case.


                                              5

home confinement as a condition of pretrial bail. We found that the Act applies only to

post-conviction situations and is penal in nature.7 We held the Act only applies to

“offenders,” which are defined in the Act 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.”8 We further concluded

that the penal intent of the Act is reflected by the substantial restrictions enumerated in

West Virginia Code § 62-11B-5 that are placed on the offender.9 We observed that an

order for home confinement must contain the mandatory, restrictive burdens set forth in

West Virginia Code § 62-11B-5 so that the intent of the court in granting home

confinement under the Act is clear.10



                In Hughes, this Court distinguished home confinement imposed post-

conviction from when it is imposed as a condition of pretrial bail. We specifically noted

that “the purpose of pre-trial bail is not to punish, but rather it acts as ‘security for the


       7
           Id. at 526-27, 476 S.E.2d at 197-98. 

       8
        Id. (emphasis added) (citing W. Va. Code § 62-11B-3).             The definition of

“offender” remains unchanged in the current version of the Act.
       9
           Id. at 527, 476 S.E.2d at 198.
       10
            Id. at 528, 476 S.E.2d at 199.



                                              6

appearance of a defendant to answer to a specific criminal charge before any court or

magistrate at a specific time or at any time to which the case may be continued.’”11 Thus,

we held that home confinement as a condition of pretrial bail is not the equivalent of

incarceration:

                        When a person who has been arrested, but not yet
                 convicted of a crime, is admitted to pre-trial bail with the
                 condition that he be restricted to home confinement pursuant
                 to West Virginia Code § 62-1C-2(c) (1992), the home
                 confinement restriction is not considered the same as actual
                 confinement in a jail, nor is it considered the same as home
                 confinement under the Home Confinement Act, West Virginia
                 Code §§ 62-11B-1 to -12 (1993). Therefore, the time spent in
                 home confinement when it is a condition of bail under West
                 Virginia Code § 62-1C-2(c) does not count as credit toward a
                 sentence subsequently imposed. [12]

We observed that “the numerous mandatory restrictions that must be imposed upon an

individual granted home confinement under [West Virginia Code § 62-11B-5 of] the Act

due its penal nature” are absent from the statutory scheme regarding bail. Therefore, we

concluded that “[t]he absence of substantial restrictions indicates that bail, even with a

home confinement restriction, is not the equivalent of incarceration.”13


       11
            Id. at 527-28, 476 S.E.2d at 198-99 (citations omitted) (emphasis added).
       12
          Syl. Pt. 4, Id. We noted that a circuit court is afforded great latitude in
formulating bail, as the court may require that bail be in the form of a deposit, a
recognizance, or “such other form as the judge of the court that will have jurisdiction to
try the offense may determine.” Id. at 528, 476 S.E.2d at 199 (citing W. Va. Code § 62-
1C-2).
       13
            Hughes, 197 W. Va. at 528, 476 S.E.2d at 199.


                                               7

             Four years later, this Court addressed the issue of whether an offender

placed on home incarceration as a condition of post-conviction bail is entitled to receive

credit for time spent on home incarceration.14 In State v. McGuire, we held:

                     [p]ursuant to the provisions of the Home Incarceration
             Act, West Virginia Code §§ 62-11B-1 to -12 (1997 & Supp.
             1999), when an offender is placed on home incarceration as a
             condition of post-conviction bail, if the terms and conditions
             imposed upon the offender are set forth fully in the home
             incarceration order and encompass, at a minimum, the
             mandatory, statutory requirements enunciated in West
             Virginia Code § 62-11B-5, then the offender is entitled to
             receive credit toward any sentence imposed for time spent on
             home incarceration, whether or not the offender violates the
             terms and conditions of home incarceration and whether or
             not the order specifically references the Home Incarceration
             Act.[15]




      14
          State v. McGuire, 207 W. Va. 459, 533 S.E.2d 685 (2000). In McGuire, we
utilized the term “home incarceration” rather than “home confinement” following the
redesignation of the Act in 1994.
      15
         Syl. Pt. 3, McGuire (emphasis added). At the time we decided McGuire, West
Virginia Code § 62-11B-11 (1999) provided only that

             [h]ome incarceration pursuant to the provisions of this article
             may be imposed at the discretion of the circuit court or
             magistrate court as an alternative means of incarceration for
             any offense. Except for offenses for which the penalty
             includes mandatory incarceration, home incarceration shall
             not be considered an exclusive means of alternative
             sentencing.


                                            8

In so finding, we specifically observed that certain essential criteria must be established

before a determination can be made that home incarceration was imposed by a circuit

court under the provisions of the Act.16 We stated:

                First, it must be found that the individual upon whom home
                incarceration was imposed was an offender as that term is
                defined by the Act. See W. Va. Code § 62-11B-3(3); see also
                Hughes, 197 W.Va. at 520, 476 S.E.2d at 191-92.
                Additionally, when an order imposes home incarceration
                pursuant to the Act, the order must set forth fully and
                completely the mandatory requirements of West Virginia
                Code § 62-11B-5.[17]


                Following our decision in McGuire, the Legislature amended the Act,

making it discretionary as to whether a circuit court grants credit to an offender for time

spent on home incarceration as a condition of bail. West Virginia Code § 62-11B-11(b)

(2014) now provides that “[u]pon conviction of a person, the circuit court, magistrate

court or municipal court may, in its discretion, grant credit for time spent on home

incarceration as a condition of bail toward any sentence imposed, if the person is found to

have complied with the terms of bail.”18




       16
            Id. at 464, 533 S.E.2d at 690.

       17
            Id. (emphasis added). 

       18
          (emphasis added). We observe that because the Act applies to “offenders” only, 

this reference to “bail” in § 62-11B-11(b) must necessarily refer to post-conviction bail.


                                              9

                Petitioner contends that in his case, the statutory terms and conditions that

are imposed on post-conviction home incarceration by West Virginia Code § 62-11B-5

were imposed upon him at the pretrial stage. Thus, although he was not yet an “offender”

at the time he was placed on home incarceration, Petitioner maintains that under Hughes

and McGuire, the imposition of those terms and conditions rendered his home

incarceration penal, entitling him to credit for that time served. Despite the Legislature’s

amendment to § 62-11B-11(b) affording the circuit court discretion as to whether to grant

credit for time served on post-conviction home incarceration, Petitioner urges this Court

to adopt the test in McGuire as a bright-line test in determining whether a court abused its

discretion in refusing to grant credit for time spent on home confinement under the Act.



                Petitioner argues that if not for the condition of home incarceration, he

would have been in jail awaiting trial and would have been granted credit for his time

spent there.19 Petitioner alleges that the circuit court’s holding creates a system ripe for


       19
            West Virginia Code § 61-11-24 (2014) provides that

                [w]henever any person is convicted of an offense in a court of
                this State having jurisdiction thereof, and sentenced to
                confinement in jail or the penitentiary of this State, or by a
                justice of the peace [magistrate] having jurisdiction of the
                offense, such person may, in the discretion of the court or
                justice [magistrate], be given credit on any sentence imposed
                by such court or justice [magistrate] for the term of
                confinement spent in jail awaiting such trial and conviction.

                                                                            (Continued . . .)

                                              10 

abuse if credit is not given under the circumstances of this case, where the home

incarceration order restricts the offender to his home.          He contends that home

incarceration saves counties money while the offender’s liberty is severely restricted with

no constitutional protections. We find Petitioner’s arguments unavailing.



               Critically, Petitioner’s home confinement was solely a condition of his

pretrial bail; thus, he was not convicted of any offense when he was placed on home

confinement.    Although Petitioner sought to have his home confinement continued

beyond his conviction until his date of sentencing, the circuit court denied his request.

Because Petitioner was not an “offender” under the Act, it is not applicable to him. Even

if we were to assume, for argument’s sake, that the Act applied because Petitioner’s home

incarceration agreement included the same restrictions as those required by West Virginia

Code § 62-11B-5—an assertion for which Petitioner has not provided sufficient

evidence20—we would find that the circuit court’s decision was not an abuse of discretion

under West Virginia Code § 62-11B-11(b).




       In Syllabus Point 6 of State v. McClain, 211 W.Va. 61, 561 S.E.2d 783 (2002),
this Court held that “[t]he Double Jeopardy and Equal Protection Clauses of the West
Virginia Constitution require that time spent in jail before conviction shall be credited
against all terms of incarceration to a correctional facility imposed in a criminal case as a
punishment upon conviction when the underlying offense is bailable.”
       20
         Although Petitioner contends, and the State does not dispute, that the rules set
forth in his home incarceration agreement are the same as those provided under West
                                                                        (Continued . . .)

                                             11 

              Unquestionably, the crimes of repeated sexual assault that Petitioner

committed against his young son and his two friends, the details of which have been

placed under seal before this Court, are heinous in nature. Petitioner was facing a thirty-

nine-count indictment, but was permitted to plead guilty to only three counts, one of

which was reduced to a lesser-included offense, due to the State’s concern about

presenting victim testimony at trial due to the victims’ emotional difficulties. During the

sentencing hearing, the circuit court acknowledged that the plea agreement was “really

right on the edge of what would be ordinarily accepted by the [c]ourt, . . . because it

[was] such a lenient plea bargain to the [Petitioner],” given the nature of the crimes at

issue and the details presented by the State regarding the long-lasting traumatic effects

that the abuse has had on the minor victims. Thus, in denying Petitioner credit for time

spent on home incarceration at the sentencing hearing, the circuit court stated:

                    Sentences to be served consecutively, no credit for
              home confinement because I believe this man’s benefited
              from his plea bargain to the extent that -- its just -- in my
              judgment, it’s just not suitable to give him credit for home
              confinement spent on pre-trial release condition.


              While Petitioner argues that the sentence was an abuse of discretion based

upon his “prior lack of any real significant criminal history,” age, employment history,

and background, the facts of this case demonstrate otherwise.          The mere fact that


Virginia Code § 62-11B-5, Petitioner failed to provide a complete copy of the agreement
in the appendix for this Court’s review.



                                            12
Petitioner was able to comply with the terms of his home incarceration is insufficient to

warrant credit for pretrial home incarceration. As the circuit court observed at the

sentencing hearing, Petitioner has neither admitted guilt during the course of these

proceedings nor ever shown remorse for his conduct. For these reasons, we conclude that

in accordance with Hughes, the circuit court properly refused to grant the Petitioner credit

for time served on home incarceration.



              Finally, with respect to Petitioner’s blanket assertion that his sentence is

disproportionate to the nature of the offense because he was denied credit for time served

on home incarceration, we likewise conclude that this issue has no merit. Petitioner’s

sentences for the crimes of sexual abuse by a parent, incest and attempt to commit a

felony are within statutory limits and Petitioner fails to assert that they were based on any

impermissible factor.21 “‘Sentences imposed by the trial court, if within statutory limits


       21
          Pursuant to West Virginia Code § 61-8D-5(a) (2014), an individual convicted of
sexual abuse by a parent “shall be imprisoned in a correctional facility not less than ten
nor more than twenty years, or fined not less than $500 nor more than $5,000 and
imprisoned in a correctional facility not less than ten years nor more than twenty years.”
An individual convicted of incest “shall be imprisoned in the penitentiary not less than
five years nor more than fifteen years, or fined not less than five hundred dollars nor
more than five thousand dollars and imprisoned in the penitentiary not less than five
years nor more than fifteen years.” W. Va. Code § 61-8-12(c) (2014). Finally, the
penalty for attempt to commit a felony in this instance is “either . . . imprison[ment] in
the penitentiary for not less than one nor more than three years, or . . . confine[ment] in
jail not less than six nor more than twelve months, and [a fine] not exceeding five
hundred dollars.” W. Va. Code § 61-11-8(2) (2014).



                                             13 

and if not based on some [im]permissible factor, are not subject to appellate review.’

Syllabus point 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).”22 We

conclude that Petitioner’s sentence should be affirmed.



                                  IV. CONCLUSION

             For the foregoing reasons, the October 13, 2016 sentencing order of the

Circuit Court of Jackson County is affirmed.

                                                                                Affirmed.




      22
         Syl. Pt. 2, State v. Booth, 224 W. Va. 307, 685 S.E.2d 701 (2009); see also State
v. Sugg, 193 W. Va. 388, 406, 456 S.E.2d 469, 487 (1995) (“As a general proposition, we
will not disturb a sentence following a criminal conviction if it falls within the range of
what is permitted under the statute.”).



                                            14 

