                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS



State of West Virginia,                                                          FILED
Plaintiff Below, Respondent                                                     March 12, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 12-0116 (Cabell County 10-F-141)                                      OF WEST VIRGINIA


Nathan Todd Barnett,
Defendant Below, Petitioner

                                MEMORANDUM DECISION

        Petitioner Nathan Todd Barnett, pro se, appeals the Circuit Court of Cabell County’s
“Order Denying Motion for Correction of Sentence” entered on January 13, 2012, denying him
credit for time served while on home incarceration.1 The State of West Virginia, by counsel
Laura Young, has filed its response, to which petitioner has filed a reply.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner was convicted of second degree murder and sentenced to confinement for
thirty-six years with credit for time served in jail. On October 6, 2008, petitioner appealed his
conviction to this Court. On July 13, 2010, this Court reversed petitioner’s conviction and
remanded it to circuit court for a new trial. As a condition of his bond, petitioner was placed on
home incarceration pending his re-trial. Petitioner entered a Kennedy plea to one count of
voluntary manslaughter in violation of West Virginia Code § 61-2-4 and given credit for all time
actually served while incarcerated in any Regional Jail or Division of Corrections Facility.
Petitioner was sentenced to confinement for fifteen years, with credit for time served in jail but
not for time served on home incarceration. Petitioner then moved for a correction of sentence
pursuant to Rule 35 of the West Virginia Rules of Criminal Procedure.

       This Court reviews appeals of circuit court orders made under Rule 35 of the West
Virginia Rules of Criminal Procedure under the following standard:

       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
1
  Consistent with this Court’s recent opinion in Elder v. Scolapia, --- S.E.2d ---, 2013 WL
656833 (W.Va.), we use the proper terminology – home incarceration – in lieu of home
confinement.
       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).

        On appeal, petitioner argues the trial court abused its discretion when it failed to give him
credit for time spent while on home incarceration in violation of West Virginia Code § 62-11B­
11(b). Petitioner argues denying him credit for time spent on home incarceration is disparate
treatment, as his co-defendants received credit. He also argues he was denied due process of law,
and that he was retaliated against for exercising his right to access the courts of this State. The
State argues that time spent on home incarceration when it is a condition of bail does not count
as credit to any sentence that may be imposed in the future.

       This Court has held:

       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
       [incarceration] pursuant to West Virginia Code § 62-1C-2(c) (1992), the home
       [incarceration] restriction is not considered the same as actual incarceration in a
       jail, nor is it considered the same as home [incarceration] under the Home
       [Incarceration] Act, West Virginia Code §§ 62-11B-1 to -12 (1993). Therefore,
       the time spent in home [incarceration] 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.

Syl. Pt. 4, State v. Hughes, 197 W.Va. 518, 476 S.E.2d 189 (1996). As noted above, petitioner
was placed on home incarceration as a condition of his bond pending a re-trial, thus was not yet
convicted. For this reason, the Court finds the trial court did not err in denying petitioner credit
for time served while on home incarceration.

       For the foregoing reasons, the circuit court’s order denying the motion for correction of
sentence is hereby affirmed.

                                                                                          Affirmed.


ISSUED: March 12, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
