                           STATE OF WEST VIRGINIA

                         SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff below, Petitioner                                                 FILED
                                                                          May 18, 2016
                                                                            released at 3:00 p.m.
vs) No. 15-0194 (Mercer County 11-F-290)                                  RORY L. PERRY, II CLERK
                                                                        SUPREME COURT OF APPEALS
                                                                             OF WEST VIRGINIA
James F.,

Defendant below, Respondent




                              MEMORANDUM DECISION

       The petitioner James F.,1 by counsel Paul R. Cassell, appeals part of the sentence
imposed by the Circuit Court of Mercer County for his conviction of two counts of attempt
to commit first degree sexual assault and one count of attempt to commit sexual abuse by a
parent, guardian, custodian, or person in a position of trust.2 He argues that state statutory
law does not permit the circuit court to impose a period of extended supervision for any of
his crimes. The State of West Virginia, by counsel Laura Young and Zachary A. Viglianco,
respond in support of the sentence imposed by the circuit court.

       After carefully considering the parties’ written and oral arguments, as well as the
record on appeal and the applicable law, this Court finds no substantial question of law and
no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s
sentencing order is appropriate under Rule 21 of the Rules of Appellate Procedure.

                         I. Factual and Procedural Background

      In October of 2011, the petitioner was indicted on four felony criminal counts. Counts
one and three charged that he committed first degree sexual assault in violation of West


       1
         Consistent with our long-standing practice in cases involving children and sensitive
matters, we use the petitioner’s last initial to protect the privacy of his minor victim. See
State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
       2
       The petitioner was originally sentenced by order entered on July 26, 2012. However,
on February 5, 2015, the circuit court resentenced him for purposes of filing an appeal.

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Virginia Code § 61-8B-3 (2014). Counts two and four charged that he committed sexual
abuse by a parent, guardian, custodian, or person in a position of trust (hereinafter “sexual
abuse by a parent”) in violation of West Virginia Code § 61-8D-5(a) (2014). For each count,
the State asserted that the petitioner engaged in sexually-motivated contact with the vaginal
area of his then four-year-old daughter.

       Pursuant to a plea agreement, on May 21, 2012, the petitioner pled guilty to two
counts of attempt to commit first degree sexual assault and one count of attempt to commit
sexual abuse by a parent. The written plea agreement stated that the three felony attempt
counts to which he was pleading guilty were “lesser-included offense(s) of Counts 1, 2, and
3 of the Indictment.” The parties agreed that the petitioner would be sentenced pursuant to
the general attempt statute, West Virginia Code § 61-11-8(2) (2014),3 with a possible prison
sentence of one to three years on each count.4 The State agreed to dismiss the remaining
count of the indictment, stand silent at sentencing, and forgo the possibility of a recidivist
sentence enhancement. The written plea agreement also provided, “[t]he defendant
recognizes that by pleading guilty to these offenses, to the extent required by law, he will be
required to register as a sex offender and will have the other restrictions placed on him as he

       3
           West Virginia Code § 61-11-8 provides as follows:

       Every person who attempts to commit an offense, but fails to commit or is
       prevented from committing it, shall, where it is not otherwise provided, be
       punished as follows:
       (1) If the offense attempted be punishable with life imprisonment, the person
       making such attempt shall be guilty of a felony and, upon conviction, shall be
       imprisoned in the penitentiary not less than three nor more than fifteen years.
       (2) If the offense attempted be punishable by imprisonment in the penitentiary
       for a term less than life, such person shall be guilty of a felony and, upon
       conviction, shall, in the discretion of the court, either be imprisoned in the
       penitentiary for not less than one nor more than three years, or be confined in
       jail not less than six nor more than twelve months, and fined not exceeding
       five hundred dollars.
       (3) If the offense attempted be punishable by confinement in jail, such person
       shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail
       not more than six months, or fined not exceeding one hundred dollars.
       4
       Because the underlying crimes are felonies, the petitioner’s convictions for attempt
to commit these crimes are also felonies. See W.Va. Code § 61-11-8(2) (“If the offense
attempted be punishable by imprisonment in the penitentiary for a term less than life, such
person shall be guilty of a felony[.]”).

                                              2

has discussed with counsel.”

        During the May 21, 2012, plea hearing, the circuit court accepted the plea agreement
and found the petitioner guilty of the three felonies. The petitioner acknowledged that
sentencing would be at the court’s sole discretion. The court found that the petitioner’s
crimes were sexually motivated; therefore, the petitioner was required to register as a sex
offender in compliance with West Virginia Code § 15-12-2 (2014). In addition, the court
inquired of counsel whether the petitioner was subject to the imposition of extended
supervision pursuant to West Virginia Code § 62-12-26 (2014 & Supp. 2015).5 When
applicable, this statute requires a period of supervised release to begin upon the expiration
of any period of probation, incarceration, or parole supervision, whichever expires last.
W.Va. Code § 62-12-26(c). Defense counsel responded that he did not think the extended
supervision statute applied, but he had nonetheless explained to the petitioner the possibility
that the court might impose such supervision. The circuit court took the supervision issue
under advisement.

       At the sentencing hearing on July 25, 2012, the circuit court imposed the statutory
term of incarceration under the attempt statute: one to three years in prison on each count.
See W.Va. Code § 61-11-8(2). These terms were ordered to run concurrently. The court also
imposed ten years of extended supervision pursuant to West Virginia Code § 62-12-26.
Verbally at the sentencing hearing, and again in the written sentencing order entered on July
26, 2012, the court provided the petitioner with a detailed recitation of the terms of his
extended supervision. The petitioner did not object to the supervision requirement when it
was imposed.6

       The petitioner discharged his prison sentence on January 23, 2014, and began his
period of extended supervision. However, in August of 2014 and again in January of 2015,
his probation officer reported to the circuit court that the petitioner was in violation of the
terms of his supervision. A violation could result in revocation of the supervised release and
incarceration for the length of the supervision period. See W.Va. Code § 62-12-26(g)
(providing for revocation of supervised release and incarceration for all or part of term of
supervised release).

       5
       West Virginia Code § 62-12-26 has been amended twice since the petitioner
committed his crimes, but provisions relevant to this appeal, which are in subsection (a), have
remained unchanged.
       6
       The petitioner did file a post-sentencing motion for reduction of sentence seeking
home confinement or probation in lieu of incarceration, but this motion did not challenge the
imposition of extended supervision. The motion was denied on July 29, 2013.

                                              3

        On January 20, 2015, the petitioner filed a motion for correction of sentence arguing
that the imposition of extended supervision was illegal in his case. By order entered January
22, 2015, the circuit court denied the motion for correction of sentence. Although finding
no merit to the petitioner’s arguments about the legality of his sentence, the circuit court
nonetheless restarted the petitioner’s appeal period anew by resentencing him on February
5, 2015. This appeal followed.7

                                      II. Discussion

       On appeal, the petitioner raises a single issue of state law: whether the extended
supervision statute, West Virginia Code § 62-12-26, requires that he be subject to supervised
release for his convictions of attempt to commit first degree sexual assault and attempt to
commit sexual abuse by a parent. He does not challenge the number of years of extended
supervision that were imposed; rather, he argues that there should be no period of
supervision.

       This matter presents a question of law to which we apply a de novo standard of
review. “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.” Syl. Pt. 1,
Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). After a careful
review of the parties’ arguments and the pertinent law, and for the reasons set forth below,
we conclude that extended supervision is mandated for the petitioner’s conviction of
attempted sexual abuse by a parent.8

       The extended supervision statute provides, in pertinent part, that

              [n]otwithstanding any other provision of this code to the contrary, any
       defendant convicted after the effective date of this section of a violation of
       section twelve, article eight, chapter sixty-one [§ 61-8-12] of this code or a
       felony violation of the provisions of article eight-b [§§ 61-8B-1 through -18],
       eight-c [§§ 61-8C-1 through -11] or eight-d [§§ 61-8D-1 through -9] of said

       7
        The probation officer’s August 2014 report of violations did not result in the
revocation of the petitioner’s extended supervision. The record on appeal does not reflect
the outcome of the January 2015 report. The issue of whether the petitioner violated the
terms of his supervision is not before us in this appeal.
       8
        Because we conclude that the petitioner is subject to extended supervision for his
conviction of attempted sexual abuse by a parent, we need not address whether extended
supervision would be required for his other counts.

                                             4

       chapter shall, as part of the sentence imposed at final disposition, be required
       to serve, in addition to any other penalty or condition imposed by the court, a
       period of supervised release of up to fifty years[.]

W.Va. Code § 62-12-26(a). The petitioner argues he is not subject to this statute because he
was convicted of “attempt” pursuant to West Virginia Code § 61-11-8, which is not listed as
one of the crimes for which supervision is mandated. We disagree.

        The petitioner’s argument overlooks that the attempt statute does not set forth a stand­
alone crime. Rather, the statute establishes the punishment for attempting, unsuccessfully,
to commit some crime specified elsewhere in the code: “Every person who attempts to
commit an offense, but fails to commit or is prevented from committing it, shall . . . be
punished as follows[.]” W.Va. Code § 61-11-8.9 An “attempt crime” is inextricably linked
to the offense that was attempted. “‘The crime of attempt does not exist in the abstract but
rather exists only in relation to other offenses[.]’” State v. Starkey, 161 W.Va. 517, 522 n.2,
244 S.E.2d 219, 223 n.2 (1978) (quoting W. LaFave & A. Scott, Handbook on Criminal Law
49 (1972)), overruled on other grounds by State v. Guthrie, 194 W.Va. 657, 667, 461 S.E.2d
163, 173 (1995). Indeed, the so-called “crime of attempt” is defined by the underlying
substantive crime:

              “‘In order to constitute the crime of attempt, two requirements must be
       met: (1) a specific intent to commit the underlying substantive crime; and (2)
       an overt act toward the commission of that crime, which falls short of
       completing the underlying crime.’ Syl. Pt. 2, State v. Starkey, 161 W.Va. 517,
       244 S.E.2d 219 (1978).” Syl. Pt. 1, State v. Burd, 187 W.Va. 415, 419 S.E.2d
       676 (1991).

Syl. Pt. 4, State v. Minigh, 224 W.Va. 112, 680 S.E.2d 127 (2009); see also State v. Michael
Austin S., No. 14-0133, 2015 WL 7304499, at * 4 n.3 (W.Va. Nov. 19, 2015) (memorandum
decision) (recognizing that “[t]he attempt statute does not itself describe a criminal
offense.”).

       One of the substantive crimes the petitioner attempted to commit is sexual abuse by
a parent, West Virginia Code § 61-8D-5(a). Sexual abuse by a parent is, unquestionably,
under the purview of the extended supervision statute because it is a “felony violation of the
provisions of article . . . eight-d” of chapter 61. See W.Va. Code § 62-12-26(a). Moreover,


       9
           See supra, note 3.


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in the sexual abuse by a parent statute, the legislature criminalized both the completed act of
abuse and the attempted act of abuse:

       If any parent, guardian or custodian of or other person in a position of trust in
       relation to a child under his or her care, custody or control, shall engage in or
       attempt to engage in sexual exploitation of, or in sexual intercourse, sexual
       intrusion or sexual contact with, a child under his or her care, custody or
       control . . . then such parent, guardian, custodian or person in a position of
       trust shall be guilty of a felony[.]

W.Va. Code § 61-8D-5(a), in part (emphasis added). Thus, the legislature mandated that any
sexual misconduct with one’s child, including an attempt to commit sexual contact,
constitutes abuse for which extended supervision is required.

       Because the petitioner’s conviction and punishment under West Virginia Code § 61­
11-8 required that he commit the exact same conduct as that proscribed by West Virginia
Code § 61-8D-5(a), i.e., attempted sexual contact with his child, and because an attempt
crime is inextricably linked to the offense that was attempted, we have little trouble in
concluding that the petitioner must be subject to extended supervision.10 Any finding to the
contrary would thwart the legislature’s clear mandate. Moreover, the record reflects that
before pleading guilty, the petitioner was aware the circuit court might impose extended
supervision.11

       10
         The question arises as to whether the circuit court erred by sentencing the petitioner
pursuant to the general attempt statute for his crime of attempted sexual abuse by a parent.
The general attempt statute sets forth the punishment for incomplete crimes “where it [the
punishment] is not otherwise provided” in law. W.Va. Code § 61-11-8. However, the
penalty for attempted sexual abuse by a parent is set forth in other law. West Virginia Code
§ 61-8D-5(a) specifies a prison sentence of ten to twenty years, or a fine of $500 to $5,000
and imprisonment for ten to twenty years, for engaging in or attempting to engage in sexual
abuse by a parent, guardian, custodian or person in a position of trust. This question is not
presently before us, but it is obvious that the petitioner benefitted from the plea agreement
and the reduced sentence he received.
       11
         As set forth in section I, the petitioner’s counsel informed the court that he had
advised the petitioner of the possibility of extended supervision. In the written plea
agreement the petitioner “acknowledge[d] that . . . he will be required to register as a sex
offender and will have the other restrictions placed on him as he has discussed with counsel.”
Although the court carefully explained the requirements of extended supervision, the
petitioner waited two and one-half years before challenging its imposition.

                                              6

        The petitioner’s argument about the applicability of the supervision statute is contrary
to the purpose of extended supervision and would lead to an absurd result. The Legislature
enacted West Virginia Code § 62-12-26 to protect society from offending behavior:

              [T]he Legislature has determined that in order to adequately
              protect society, the crimes enumerated in the supervised release
              statute require community-based supervision and treatment over
              and above incarceration. Supervised release is a method
              selected by the Legislature to address the seriousness of these
              crimes to the public welfare and to provide treatment during the
              transition of offenders back into society with the apparent goal
              of modifying the offending behavior.

State v. James, 227 W.Va. 407, 416, 710 S.E.2d 98, 107 (2011). The fact that the petitioner
had the specific intent to commit a sex crime against his daughter, and took an overt action
toward the commission of that crime, evidences the same serious conduct from which the
legislature sought to protect the public. The legislature could not possibly have intended to
provide supervised release dependent upon a perpetrator’s relative degree of success in
completing a sex crime. The fact that a perpetrator tries, but fails, to commit sex crimes
against his child does not lessen his potential for being a danger to the child, and does not
lessen his need for treatment during his transition back into society.

                                       III. Conclusion

       Accordingly, because the petitioner was convicted of the crime of attempted sexual
abuse by a parent, we affirm the circuit court’s sentencing order requiring, inter alia, ten
years of extended supervision.

                                                                                     Affirmed.

ISSUED: May 18, 2016

CONCURRED IN BY:

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


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