                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                        FILED
                                                                               October 11, 2019
vs) No. 18-0814 (Jefferson County 16-F-56)                                      EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Gerald R.,
Defendant Below, Petitioner


                               MEMORANDUM DECISION


        Petitioner Gerald R.,1 by counsel J. Daniel Kirkland, appeals the August 20, 2018, order of
the Circuit Court of Jefferson County that sentenced him to one to five years in prison upon his
guilty plea to one count of sexual assault in the third degree. The State of West Virginia, by counsel
Benjamin F. Yancey, III, filed a response.

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

        On April 19, 2016, a Jefferson County Grand Jury returned a sixteen-count indictment
against petitioner charging him with eight counts of third-degree sexual assault and eight counts
of sexual abuse by a parent, guardian, custodian, or person in a position of trust to a child.
Petitioner, who was then fifty years old, was accused of having a sexual relationship with the
daughter of a former girlfriend. The victim was fourteen years old.

       On February 23, 2018, petitioner entered a guilty plea (under Alford/Kennedy
circumstances2) to one count of third-degree sexual assault. In exchange, the State agreed to

       1
        Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
       2
         Relying on North Carolina v. Alford, 400 U.S. 25 (1970), this Court held in syllabus point
one of Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987), that “[a]n accused may
voluntarily, knowingly and understandingly consent to the imposition of a prison sentence even


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dismiss the remaining counts of the indictment and not to file a recidivist action. (Petitioner was
previously convicted of second-degree arson, aggravated robbery, and malicious assault/malicious
wounding.) The plea agreement further provided that sentencing will be at the discretion of the
circuit court; that “the [c]ourt will not be bound at sentencing”; and that “both the State and
[petitioner] will remain free to argue for any lawful sentence.” Finally, the plea agreement noted
that the conviction will require petitioner to register for life as a sex offender.

         On August 20, 2018, following a sentencing hearing at which the victim and her mother
both gave impact statements, the circuit court denied petitioner’s request for home incarceration
and sentenced him to one to five years in prison, with sixty-four days of credit for time served in
jail prior to his conviction and for time served on post-conviction home incarceration. The court
did not give petitioner credit for the 1,024 days he served on home incarceration as a condition of
bail. Petitioner was also sentenced to thirty-five years of supervised release and ordered to register
for life as a sex offender. It is from this sentencing order that petitioner now appeals.3

        Sentencing orders are reviewed “‘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).” Syl. Pt. 1, in part, State v. James, 227 W. Va. 407, 710 S.E.2d
98 (2011). Moreover, this Court has held that “‘[s]entences 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).” Syl. Pt.
3, State v. Georgius, 225 W. Va. 716, 696 S.E.2d 18 (2010).

        On appeal, petitioner argues that the circuit court abused its discretion in sentencing him
to one to five years in prison and refusing to give him credit for time served on pre-conviction
home incarceration. He acknowledges that his sentence is within statutory limits, but contends that
it was based upon an impermissible factor. According to petitioner, the circuit court failed to give
appropriate weight to the fact that petitioner fully complied with the conditions of home
incarceration and, instead, focused primarily on deterring prospective sex offenders in determining
his sentence. The court stated, during the sentencing hearing, that “what is in the best interest of
the community is not to send a message to any prospective child sex offenders that if they commit
a sex offense in this county that they are going to be likely to receive any form of home
incarceration or probation from the [c]ourt.” Petitioner argues that the circuit court abused its
discretion in failing to take into account the particular facts of his case.

       We find no error. It is clear that, during the course of the sentencing hearing, the circuit


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.”
       3
         Petitioner filed his notice of intent to appeal the August 20, 2018, sentencing order on
September 20, 2018. On December 13, 2018, he filed a motion for reconsideration of his sentence
under Rule 35(b) of the West Virginia Rules of Criminal Procedure. The circuit court denied that
motion by order entered on January 3, 2019. To the extent petitioner seeks to also challenge the
order denying his Rule 35(b) motion in the present appeal, we find that that order is not presently
before the Court.
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court carefully considered several relevant factors in determining petitioner’s sentence. In addition
to deterrence, the court noted its concern that petitioner was fifty years old and the victim only
fourteen; that the victim had previously been sexually abused by someone else and that petitioner
knew about it before committing similar abuses himself; and that petitioner had a criminal history
consisting of serious offenses, including second-degree arson, aggravated robbery, and malicious
assault/malicious wounding. Additionally, the circuit court considered the impact statements given
by the victim and her mother, concluding that both the victim and her family have been “deeply
affected” by petitioner’s crimes. Finally, the court indicated that a prison sentence would ensure
that petitioner would not soon victimize another child. Given these facts, this Court concludes that
petitioner’s claim that his sentence was based upon an impermissible factor is without merit.

        Petitioner also argues that the circuit court erred in failing to award him credit for time
served on home incarceration prior to his conviction as a condition of bail. He contends that he
was entitled to such credit under West Virginia Code § 62-11B-11(b), which provides that “[u]pon
conviction of a person, the circuit 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.” According to petitioner, his home incarceration supervisor
specifically noted that petitioner was “very compliant” with the terms and conditions of his pre-
conviction home incarceration, including passing all thirty random drug screens and having no
curfew violations. Petitioner contends that it was an abuse of the court’s discretion to refuse to
credit that time in sentencing.

         We find no error. In State v. Jedediah C., 240 W. Va. 534, 814 S.E.2d 197 (2018), cert.
denied, 139 S.Ct. 822 (2019), we reiterated that home incarceration (formerly referred to as “home
confinement”) imposed post-conviction differs from that which is imposed as a condition of pre-
trial bail. Post-conviction home incarceration is penal while “the purpose of pre-trial bail is not to
punish, but rather it acts as ‘security for the appearance of a defendant to answer to a specific
criminal charge . . . at a specific time or at any time to which the case may be continued.’” 240 W.
Va. at 538, 814 S.E.2d at 201 (quoting State v. Hughes, 197 W. Va. 518, 527-28, 476 S.E.2d 189,
198-99 (1996)). We thus held that

       “[w]hen 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, 475 S.E.2d 189 (1996).

Jedediah C., 240 W. Va. at 535, 814 S.E.2d at 198, syl. pt. 2.4 Accordingly, we conclude that the


       4
         In Jedediah C., we “observe[d] that because [West Virginia Code §§ 62-11B-1 to -12]
applies to ‘offenders’ only, [the] reference to ‘bail’ in § 62-11B-11(b) must necessarily refer to
post-conviction bail.” 240 W. Va. at 539 n.18, 814 S.E.2d at 202 n.18.
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circuit court did not abuse its discretion in denying petitioner credit for time served while on home
incarceration imposed as a condition of pre-trial bail.

       For the foregoing reasons, we affirm the circuit court’s sentencing order entered on August
20, 2018.

                                                                                          Affirmed.


ISSUED: October 11, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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