                               STATE OF WEST VIRGINIA 

                             SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                       FILED
                                                                              October 12, 2018
vs.) No. 17-0526 (Greenbrier County 17-F-44)                                  EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Larry E. Scott, 

Defendant Below, Petitioner



                                MEMORANDUM DECISION
        Petitioner Larry E. Scott, by counsel Jason D. Parmer, appeals the Circuit Court of
Greenbrier County’s May 5, 2017, order sentencing him to an indeterminate term of one to three
year terms of incarceration followed by twenty years of supervised release for one count of
attempt to commit a felony. Respondent, the State of West Virginia, by counsel Zachary
Viglianco, filed a response in support of the circuit court’s sentencing order. Petitioner filed a
reply. On appeal, petitioner argues that the circuit court imposed an illegal sentence because state
statutory law does not permit the circuit court to impose a period of supervised release for the
crime of attempt to commit a felony.

       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.

        In January of 2017, petitioner waived his right to an indictment and was charged by
information with one count of attempt to commit first-degree sexual abuse, as proscribed in West
Virginia Code § 61-8B-7. In the information, the State alleged that petitioner attempted to
intentionally touch the vagina of the alleged victim, who was nine years of age. Pursuant to a
plea agreement, the parties agreed that petitioner would enter a Kennedy1 plea to one count of
attempt to commit first-degree sexual abuse in violation of West Virginia Code § 61-11-8(2)2

       1
           Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987).
       2
           West Virginia Code § 61-11-8 provides, in relevant part:

              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

                                                                                    (continued . . .)
                                                  1

and the State would dismiss any related charges against him. The written plea agreement also
provided that petitioner would be “required to register as a sex offender . . . in accordance with
the provisions of West Virginia Code §15-12-1” and that petitioner was advised that “the express
provisions of West Virginia Code § 62-12-26(a)3 do not apply as a result of a conviction for
Attempt to Commit a Felony, to wit Sexual Abuse in the First Degree[.]” Petitioner “expressly
reserve[d] his right to appeal any sentencing order subjecting him to supervised release.” The
circuit court deferred acceptance of the plea until a pre-sentence investigation report could be
completed and the circuit court could be satisfied that the plea was consistent with the fair
administration of justice. Petitioner moved for a forensic examination pursuant to West Virginia
Code § 62-12-2(e) to determine his eligibility for probation or alternative sentencing and the
circuit court granted that motion.4


       punished as follows: . . . (2) [i]f the offense attempted by 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
           West Virginia Code § 62-12-26(a) provides, in relevant part:

               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 require to serve, in addition to any other
       penalty or condition imposed by the court, a period of supervised release of up to
       fifty years . . .
       4
           West Virginia Code § 62-12-2(e) provides:

               In the case of any person who has been found guilty of, or pleaded guilty
       to, a violation of the provisions of section twelve, article eight, chapter sixty-one
       of this code, the provisions of article eight-c or eight-b of said chapter, or under
       the provisions of section five, article eight-d of said chapter, such person shall
       only be eligible for probation after undergoing a physical, mental and psychiatric
       study and diagnosis which shall include an on-going treatment plan requiring
       active participation in sexual abuse counseling at a mental health facility or
       through some other approved program: Provided, That nothing disclosed by the
       person during such study or diagnosis shall be made available to any law-
       enforcement agency, or other party without that person's consent, or admissible in
       any court of this state, unless such information disclosed shall indicate the
       intention or plans of the probationer to do harm to any person, animal, institution
       or property, in which case such information may be released only to such persons

                                                                                     (continued . . .)
                                                  2

       After receiving the pre-sentence investigation report and hearing testimony from the
victim’s father, the circuit court accepted the plea as tendered in April of 2017. Petitioner
informed the circuit court that his forensic examination was not yet completed and the circuit
court continued sentencing until it was completed.

       At the sentencing hearing in May of 2017, petitioner’s counsel argued that West Virginia
Code § 62-12-26(a), the supervised release statute, does not authorize the imposition of
supervised release after a conviction under §61-11-8. The State argued that, pursuant to this
Court’s reasoning in the recent memorandum decision State v. James F.,5 there is an inextricable
link between the attempt statute and the statutes to which West Virginia Code § 62-12-26(a)
applies and, therefore, defendants convicted of attempt to commit the crimes listed in West
Virginia Code § 62-12-26(a) are subject to the provisions therein. Ultimately, the circuit court
agreed with the State and sentenced petitioner to an indefinite term of one to three years of
incarceration followed by twenty years of supervised release. The circuit court’s sentence was
memorialized in its May 5, 2017, order. Petitioner now appeals that order.

        On appeal, petitioner argues that the circuit court’s sentencing order is illegal because the
crime of attempt to commit a felony, found in West Virginia Code § 61-11-8, is not one of the
crimes enumerated in West Virginia Code § 62-12-26 subject to extended supervision. Petitioner
asserts that the circuit court relied on dictum found in this Court’s memorandum decision State v.
James F. and argues that James F. engages in incorrect and unnecessary interpretation of an
unambiguous statute. Respondent argues, in parallel with our previous holding, that there is no
analytically distinct crime of “attempt to commit,” and that the crime attempted is a derivative,
lesser-included offense of the statutory crime. According to respondent, it is proper to apply
West Virginia Code § 61-11-8 to persons convicted of attempt to commit the crimes enumerated
in West Virginia Code § 62-12-26.

        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’ briefs
on appeal and the pertinent law, and for the reasons set forth below, we conclude that the
reasoning in State v. James F. is sound and that the extended supervision statute applies to
petitioner’s conviction of attempted first-degree sexual abuse.




       as might be necessary for protection of the said person, animal, institution or
       property.
       5
      State v. James F., No. 15-0194, 2016 WL 2905508 (W.Va. May 18, 2016)
(memorandum decision).




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        It is uncontroverted that petitioner was convicted of attempt to commit a felony under
West Virginia Code § 61-11-8. This statute does not set forth a standalone crime; “[it] 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). 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).

        In this case, petitioner was convicted of his attempt to commit the substantive crime of
first-degree sexual abuse, which is set forth in West Virginia Code § 61-8B-7.6 First-degree
sexual abuse is one of the crimes specifically mentioned in the extended supervision statute,
West Virginia Code § 62-12-26, which provides

       “[n]otwithstanding any other provision of this code to the contrary, any defendant
       convicted after the effective date of this section of . . . a felony violation of the
       provisions of article eight-b [§§ 61-8B-1 through –18] . . . shall, as part of the
       sentence imposed at final disposition, be required to serve, in addition to any
       other penalty or conditions imposed by the court, a period of supervised release of
       up to fifty years[.]”

        Although the attempt statute under which petitioner was convicted is not specifically
enumerated, the substance of his conviction is inextricably linked to one of the crimes contained
in the supervision statute. Therefore, petitioner is subject to the extended supervision statute and
the requirements therein. This conclusion is consistent with our prior holdings and with the
purpose of the extended supervision statute. 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). By his guilty plea, petitioner
admitted that he, being older than fourteen, had the specific intent to subject the victim to sexual
contact, a person younger than twelve. Further, petitioner admitted he took some overt action

       6
        West Virginia Code § 61-8B-7 provides, in relevant part: “(a) [a] person is guilty of
sexual abuse in the first degree when: . . . (3) [s]uch person, being fourteen years old or more,
subjects another person to sexual contact who is younger than twelve years old.”



                                                 4

toward the commission of that crime. These acts are the same serious conduct from which the
Legislature sought to protect the public. Hinging that protection on whether a person completed
the crime or was foiled in the attempt does not lessen that person’s ongoing danger to society
without the proper treatment. To the extent that petitioner requests that the reasoning of State v.
James F. be discarded, we decline to do so.

       For the foregoing reasons, the circuit court’s May 5, 2017, sentencing order is hereby
affirmed.


                                                                                        Affirmed.

ISSUED: October 12, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.




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