                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                       FILED

                                                                              January 5, 2018

vs) No. 16-0889 (Randolph County 13-F-71)                                    EDYTHE NASH GAISER, CLERK

                                                                             SUPREME COURT OF APPEALS

                                                                                 OF WEST VIRGINIA

Loren Garcia,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
       Petitioner Loren Garcia, by counsel Jeremy B. Cooper, appeals the Circuit Court of
Randolph County’s September 14, 2016, order denying her motion to correct an allegedly illegal
sentence. Respondent State of West Virginia, by counsel Sarah B. Massey, filed a response in
support of the circuit court’s order.

        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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

                             Factual and Procedural Background

        In 2013, petitioner was indicted on one count of child abuse resulting in bodily injury,
one count of conspiracy, and one count of child neglect resulting in bodily injury. In April of
2014, petitioner entered into a plea agreement whereby she pled guilty to one count of child
neglect resulting in bodily injury, in violation of West Virginia Code § 61-8D-4(a), in exchange
for the dismissal of the other two charges. The factual basis for petitioner’s guilty plea was that
she allowed her husband to hit their children. The circuit court sentenced petitioner to one to
three years of incarceration, required her to register with the child abuse registry, and imposed
ten years of extended supervised release under West Virginia Code § 62-12-26.

        Petitioner was discharged from incarceration and began reporting to an intensive
supervision officer as part of her extended supervision. In March of 2016, petitioner was arrested
on robbery and related charges, prompting the State to seek revocation of her supervised release.
Following an evidentiary hearing on the State’s motion, the circuit court found petitioner to be in
violation of the terms of her supervised release and sentenced her to serve three years of
incarceration, followed by thirty years of extended intensive supervision under West Virginia
Code § 62-12-26.


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        Petitioner filed a motion under Rule 35(a) of the West Virginia Rules of Criminal
Procedure,1 arguing that “modification of her sentence to include a 30 year period of supervised
release, and the associated exposure to three decades of incarceration . . . is in violation of [her]
substantive due process rights under both the United States and West Virginia Constitutions.”
Petitioner contended that the enhanced deprivation of her liberty interest violated substantive due
process because, as a non-sexual offender, the extended supervision does not bear a reasonable
relationship to a proper legislative purpose and is arbitrary. Following a hearing, the circuit court
denied petitioner’s motion by order entered on September 14, 2016, ruling that West Virginia
Code § 62-12-26 was unambiguous and that “the legislature was specific and protection of
children in our state is a compelling state interest.” This appeal followed.

                                            Discussion

       This Court has articulated the following standard of review for the denial of a Rule 35
motion:

       In reviewing the findings of fact and conclusions of law of a circuit court
       concerning an order on a motion made under Rule 35 of the West Virginia Rules
       of Criminal Procedure, we apply a three-pronged standard of review. We review
       the decision on the Rule 35 motion under an abuse of discretion standard; the
       underlying facts are reviewed under a clearly erroneous standard; and questions of
       law and interpretations of statutes and rules are subject to a de novo review.

Syl. Pt. 1, State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996). Additionally, we have held:

       1.     The constitutionality of a statute is a question of law which this Court
       reviews de novo.

       2.      “In considering the constitutionality of a legislative enactment, courts
       must exercise due restraint, in recognition of the principle of the separation of
       powers in government among the judicial, legislative and executive branches.
       Every reasonable construction must be resorted to by the courts in order to sustain
       constitutionality, and any reasonable doubt must be resolved in favor of the
       constitutionality of the legislative enactment in question. Courts are not concerned
       with questions relating to legislative policy. The general powers of the legislature,
       within constitutional limits, are almost plenary. In considering the
       constitutionality of an act of the legislature, the negation of legislative power must
       appear beyond reasonable doubt.” Syllabus Point 1, State ex rel. Appalachian
       Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965).

Syl. Pts. 1 and 2, State v. Rutherford, 223 W.Va. 1, 672 S.E.2d 137 (2008). With these standards
in mind, we turn to petitioner’s sole assignment of error.

       1
        Rule 35(a) of the West Virginia Rules of Criminal Procedure provides that “[t]he court
may correct an illegal sentence at any time and may correct a sentence imposed in an illegal
manner within the time period provided herein for the reduction of sentence.”
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       Petitioner argues that the imposition of supervised release under West Virginia Code §
62-12-26 for a non-sexual offender violates the substantive due process guarantees under the
West Virginia and United States Constitutions. West Virginia Code § 62-12-26, entitled,
“Extended supervision for certain sex offenders; sentencing; conditions; supervision provisions;
supervision fee,” provides, in part, as follows:

       (a) Notwithstanding 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 of this code or a felony violation of the
       provisions of article eight-b, eight-c or eight-d of said 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[.]

       (b) Any person required to be on supervised release between the minimum term
       of ten years and life pursuant to the provisos of subsection (a) of this section also
       shall be further prohibited from:

               (1) Establishing a residence or accepting employment within one thousand
       feet of a school or child care facility or within one thousand feet of the residence
       of a victim or victims of any sexually violent offenses for which the person was
       convicted;

               (2) Loitering within one thousand feet of a school or child care facility or
       within one thousand feet of the residence of a victim or victims of any sexually
       violent offenses for which the person was convicted[;]

              (3) Establishing a residence or any other living accommodation in a
       household in which a child under sixteen resides if the person has been convicted
       of a sexually violent offense against a child, unless the person is one of the
       following:

               (i)     The child’s parent;
               (ii)    The child’s grandparent; or
               (iii) The child’s stepparent and the person was the stepparent of the
       child prior to being convicted of a sexually violent offense, the person’s parental
       rights to any children in the home have not been terminated, the child is not a
       victim of a sexually violent offense perpetrated by the person, and the court
       determines that the person is not likely to cause harm to the child or children with
       whom such person will reside: Provided, That nothing in this subsection shall
       preclude a court from imposing residency or employment restrictions as a
       condition of supervised release on defendants other than those subject to the
       provision of this subsection.

      Petitioner acknowledges that a person convicted of violating West Virginia Code § 61­
8D-4 is required to serve a period of supervised release under the plain language of the

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supervised release statute even though the crime may not be sexual in nature. Indeed, this Court
has recently ruled that the supervised release statute applies to non-sexual crimes. See State v.
Billy W., No. 16-0345, 2017 WL 383781 (W.Va. Jan. 27, 2017) (memorandum decision); State v.
Ferguson, No. 14-0474, 2015 WL 508172 (W.Va. Feb. 6, 2015) (memorandum decision). Thus,
in the present case, the statute clearly and unambiguously applies to the non-sexual crime for
which petitioner was convicted. Additionally, this Court has upheld the statute when challenged
as a violation of procedural due process, cruel and unusual punishment, double jeopardy, and
retroactive application. See State v. Deel, 237 W. Va. 600, 788 S.E.2d 741 (2016); State v.
Hargus, 232 W. Va. 735, 753 S.E.2d 893 (2013); State v. James, 227 W. Va.407, 710 S.E.2d 98
(2011).

       In the present case, petitioner argues that the statute, when applied to a non-sexual
offense, violates her substantive due process rights. This Court has held that

       [t]he United States Supreme Court has interpreted “‘the Fifth and Fourteenth
       Amendments’ guarantee of ‘due process of law’ to include a substantive
       component, which forbids the government to infringe certain ‘fundamental’
       liberty interests at all, no matter what process is provided, unless the infringement
       is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S.
       292, 301–02, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1, 16 (1993) (citations omitted).

Sale ex rel. Sale v. Goldman, 208 W. Va. 186, 194, 539 S.E.2d 446, 454 (2000). We have further
held as follows:

       Inherent in the due process clause of the State Constitution are both the concept of
       substantive due process and the concept of equal protection of the laws. In order
       for the statutory scheme . . . to withstand constitutional scrutiny under the
       substantive due process standard, it must appear that the means chosen by the
       Legislature to achieve a proper legislative purpose bear a rational relationship to
       that purpose and are not arbitrary or discriminatory.

State ex rel. Harris v. Calendine, 160 W. Va. 172, 179, 233 S.E.2d 318, 324 (1977) (footnotes
omitted).

        Petitioner does not clearly indicate, much less persuade us, that imposition of extended
supervised release on a non-sexual offender infringes a fundamental right, and, therefore, must
withstand strict scrutiny analysis. See Washington v. Glucksberg, 521 U.S. 702, 720
(1997)(stating that the Due Process Clause “provides heightened protection against government
interference with certain fundamental rights and liberty interests.”). She also fails to clearly
indicate that the statute lacks a rational basis.2 Rather than provide this Court with a thorough



       2
          Without clearly indicating the standard under which we should examine the statute,
petitioner simply argues that “the circumstances under which it is applied demonstrate that the
application of this law to non-sexual offenders is both arbitrary, and not narrowly tailored to
accomplish a legitimate legislative purpose.” In any event, we affirm the denial of petitioner’s
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constitutional argument, petitioner rests her appeal on two main points: (1) the title of the statute
states that it applies to sex offenders only, and (2) the statute contains provisions that are
“purposeless” in the context of non-sexual offenders.

        Upon our review, neither of petitioner’s points have merit. First, petitioner’s claim that
the title of the statute demonstrates its arbitrariness fails. This Court has previously
acknowledged as follows:

       You can look to the title of the statute to ascertain intent, City of Huntington v.
       State Water Comm., 135 W. Va. 568, 64 S.E.2d 225 (1951), but the title can not
       [sic] limit the plain meaning of the text, Mazzella v. Yoke, 70 F.Supp. 462
       (S.D.W.Va. 1947). Don’t confuse the title with chapter, article and section
       headings which cannot be used to ascertain intent, W. Va. Code, 2-2-12 [1965].

Virginia Elec. & Power Co. v. Pub. Serv. Comm’n of W.Va., 162 W.Va. 202, 206, n.2, 248
S.E.2d 322, 325 n.2 (1978). Indeed, West Virginia Code § 2-2-12 provides, in part, that

       [c]hapter, article or section headings, headlines or headnotes of any act of the
       Legislature, whether in the act at the time of passage or inserted by the clerk of
       the House of Delegates in editing, compiling and publishing the acts of the
       Legislature, are hereby declared to be mere catchwords and shall not be deemed
       or construed to be titles of such chapters, articles or sections, or as any part
       thereof, or as indicating or expressing legislative intent or purpose.

Thus, the fact that the title of the statute references only “sex offenders” does not cause this
Court to ignore the plain language of the statute, which clearly provides that extended supervised
release applies also to non-sexual crimes, such as the crime for which petitioner was convicted
and sentenced.

        Petitioner’s second argument focuses on four subsections within the statute that petitioner
asserts are purposeless when applied to non-sexual offenders. First, subsection (b)(1) prohibits an
individual on supervised release from “[e]stablishing a residence or accepting employment
within one thousand feet of a school or child care facility or within one thousand feet of the
residence of a victim or victims of any sexually violent offenses for which the person was
convicted[.]” Similarly, subsection (b)(2) prohibits “[l]oitering within one thousand feet of a
school or child care facility or within one thousand feet of the residence of a victim or victims of
any sexually violent offenses for which the person was convicted[.]” Subsection (b)(3) prohibits
an individual under supervised release, with certain exceptions, from “[e]stablishing a residence
or any other living accommodation in a household in which a child under sixteen resides if the
person has been convicted of a sexually violent offense against a child[.]” Finally, petitioner
points to subsection (e), which provides, in part, as follows:



Rule 35(a) motion in the present case without expressly addressing the constitutionality of the
statute under substantive due process principles. See Discussion, infra.


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       A defendant sentenced to a period of supervised release shall be subject to any or
       all of the conditions applicable to a person placed upon probation pursuant to the
       provisions of section nine of this article: Provided, That any defendant sentenced
       to a period of supervised release pursuant to this section shall be required to
       participate in appropriate offender treatment programs or counseling during the
       period of supervised release unless the court deems the offender treatment
       programs or counseling to no longer be appropriate or necessary and makes
       express findings in support thereof.

W.Va. Code § 62-12-26.

        Petitioner contends that these subsections have no application to non-sexual offenders.
Based on a plain reading of the statute, we disagree. First, the application of subsections (b)(1)
and (b)(2) is not limited to sexual offenders; the plain language clearly indicates a prohibition
against residing, working, or loitering near a school or daycare, regardless of whether the
individual on supervised release has been convicted of a sex crime. We are hard-pressed to find
such a restriction to be arbitrary when imposed on a person convicted of a crime covered by the
statute, as is the case here. Next, subsection (b)(3) contains an express exception stating that the
prohibition applies only if the “person has been convicted of a sexually violent offense against a
child[,]” which would not affect petitioner. Finally, as for subsection (e), we find nothing in this
subsection that is purposeless when applied to individuals convicted of non-sex crimes. Indeed,
the statute makes clear that individuals on supervised release are required to participate in
“offender treatment programs or counseling,” which clearly is not limited to treatment or
counseling for sex offenders. Simply put, we do not find it “purposeless” to require an individual
such as petitioner to attend treatment or counseling as part of supervised release. In any event,
subsection (e) goes on to expressly permit the sentencing court to lift the condition if treatment
and counseling are not “appropriate or necessary.” Accordingly, under the limited circumstances
of this case, and based upon the specific arguments presented by petitioner on appeal, we find no
error in the circuit court’s denial of petitioner’s Rule 35(a) motion.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: January 5, 2018

CONCURRED IN BY:

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




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