           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 January 2016 Term

                                                                         FILED

                                                                      June 3, 2016

                                     No. 15-0345
                     released at 3:00 p.m.
                                                                    RORY L. PERRY, II CLERK

                                                                  SUPREME COURT OF APPEALS

                                                                       OF WEST VIRGINIA




                             STATE OF WEST VIRGINIA,

                                    Respondent


                                          v.


                                   JERRY DEEL,

                                     Petitioner




                    Appeal from the Circuit Court of Mercer County

                       The Honorable Derek C. Swope, Judge

                             Criminal Case No. 04-F-300


                             REVERSED AND REMANDED



                               Submitted: May 17, 2016
                                  Filed: June 3, 2016

Steven K. Mancini, Esq.                              Patrick Morrisey, Esq.
Beckley, West Virginia                               Attorney General
Counsel for the Petitioner                           Laura Young, Esq.
                                                     Deputy Attorney General
                                                     Julie Marie Blake, Esq.
                                                     Assistant Attorney General
                                                     Charleston, West Virginia
                                                     Counsel for the Respondent



JUSTICE WORKMAN delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT



              1.      “The Supreme Court of Appeals reviews sentencing orders . . . under

a deferential abuse of discretion standard, unless the order violates statutory or constitutional

commands.” Syl. Pt. 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997).



              2.      “Under ex post facto principles of the United States and West Virginia

Constitutions, a law passed after the commission of an offense which increases the

punishment, lengthens the sentence or operates to the detriment of the accused, cannot be

applied to him.” Syl. Pt. 1, Adkins v. Bordenkircher, 164 W. Va. 292, 262 S.E.2d 885 (1980).



              3.      The supervised release statute, West Virginia Code § 62-12-26, provides

for an additional penalty to be imposed upon a person who is convicted of any of the

enumerated sex offenses set forth therein. Any retroactive application of the supervised

release statute to an individual who committed any of the enumerated sex offenses prior to

the effective date of the supervised release statute violates the constitutional prohibition

against ex post facto laws set forth in article III, section 4 of the West Virginia Constitution

and Article I, Section 10 of the United States Constitution.




                                                i
              4.      In order to avoid the constitutional prohibition against ex post facto

laws, West Virginia Code § 62-12-26 must not be applied to those individuals who

committed any of the enumerated sex offenses set forth in the supervised release statute prior

to the date the supervised release statute became effective regardless of any contrary

language contained in West Virginia Code § 62-12-26.



              5.      “This Court’s application of the plain error rule in a criminal

prosecution is not dependent upon a defendant asking the Court to invoke the rule. We may,

sua sponte, in the interest of justice, notice plain error.” Syl. Pt. 1, State v. Myers, 204 W.

Va. 449, 513 S.E.2d 676 (1998).



              6.      “Under the ‘plain error’ doctrine, ‘waiver’ of error must be

distinguished from ‘forfeiture’ of a right. A deviation from a rule of law is error unless there

is a waiver. When there has been a knowing and intentional relinquishment or abandonment

of a known right, there is no error and the inquiry as to the effect of a deviation from the rule

of law need not be determined. By contrast, mere forfeiture of a right–the failure to make

timely assertion of the right–does not extinguish the error. In such a circumstance, it is

necessary to continue the inquiry and to determine whether the error is ‘plain.’ To be ‘plain,’

the error must be ‘clear’ or ‘obvious.’” Syl. Pt. 8. State v. Miller, 194 W. Va. 3, 459 S.E.2d

114 (1995).



                                               ii
               7.      “To trigger application of the ‘plain error’ doctrine, there must be (1)

an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the

fairness, integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller,

194 W. Va. 3, 459 S.E.2d 114 (1995).



               8.      “An unpreserved error is deemed plain and affects substantial rights

only if the reviewing court finds the lower court skewed the fundamental fairness or basic

integrity of the proceedings in some major respect. In clear terms, the plain error rule should

be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court

invoked by lesser errors should be exercised sparingly and should be reserved for the

correction of those few errors that seriously affect the fairness, integrity, or public reputation

of the judicial proceedings.” Syl. Pt. 7, State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613

(1996).




                                                iii
Workman, Justice:



                 This case is before the Court upon the appeal of the Petitioner, Jerry Deel, from

the March 10, 2015, order of the Circuit Court of Mercer County, West Virginia, wherein the

circuit court modified the Petitioner’s probationary period to five years followed by twenty

years of “intensive supervision as a sex offender.” On appeal, the Petitioner argues that the

circuit court erred in changing the original sentencing order by adding a term of supervised

release.1 Based upon a review of the parties’ briefs, the appendix record, and all other

matters before the Court, we notice plain error grounded in the application of the ex post

facto clause found in both the West Virginia and United States Constitutions.2 Accordingly,

we reverse only that portion of the Petitioner’s sentence wherein extended supervision for




       1
        Given that we decide this case on the ex post facto issue discussed in greater detail
infra, we need not address the Petitioner’s assigned error.
       2
           West Virginia Constitution, article III, section 4 provides as follows:

                        The privilege of the writ of habeas corpus shall not be
                 suspended. No person shall be held to answer for treason,
                 felony or other crime, not cognizable by a justice, unless on
                 presentment or indictment of a grand jury. No bill of attainder,
                 ex post facto law, or law impairing the obligation of a contract,
                 shall be passed.

Likewise, the United States Constitution, Article I, Section 10 provides, in pertinent part,
“[n]o State shall . . . pass any . . . ex post facto Law . . . .

                                                 1

sex   offenders      as   set    forth    in   West      Virginia     Code      §      62-12-26 3

       3
        The extended supervision for certain sex offenders statute (“supervised release
statute”) was first enacted in 2003. The 2003 version of the statute, which was in effect at
the time of the Petitioner’s conviction and imposition of his initial sentence, gave a circuit
court discretion as to whether to impose any period of supervised release as follows:

                      (a) Notwithstanding any provision of this code to the
              contrary, any defendant convicted after the effective date of this
              section of a violation of section twelve [§ 61-8-12], article eight,
              chapter sixty-one of this code or a felony violation of the
              provisions of article eight-b [§§ 61-8B-1 et seq.], eight-c [§§ 61­
              8C-1 et seq.] or eight-d [§§ 61-8D-1 et seq.] of said chapter
              may, 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. The period of supervised release imposed by the
              provisions of this section shall begin upon the expiration of any
              period of probation, the expiration of any sentence of
              incarceration or the expiration of any period of parole
              supervision imposed or required of the person so convicted,
              whichever expires later.

(Emphasis added.)

      In 2006, the Legislature amended the statute to require a mandatory period of
extended supervised release 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 [§ 61-8-12], article
              eight, chapter sixty-one of this code or a felony violation of the
              provisions of article eight-b [§§ 61-8B-1 et seq.], eight-c [§§ 61­
              8C-1 et seq.] or eight-d [§§ 61-8D-1 et seq.] of said chapter
              shall, as part of the sentence imposed at final disposition, be
              required to serve, in addition to any other penalty of condition
              imposed by the court, a period of supervised release up to fifty
              years: Provided, That the period of supervised release imposed
              by the court pursuant to this section for a defendant convicted
                                                                                     (continued...)

                                               2

was imposed.



                                             I. FACTS

                 On October 13, 2004, an indictment was returned against the Petitioner.

According to the indictment, on September 21, 2001, the Petitioner was alleged to have

committed the offense of sexual abuse in the first degree, attempt to commit a felony of

sexual assault in the first degree, sexual assault in the first degree and sexual abuse by a

       3
           (...continued)

                  after the effective date of this section as amended and reenacted

                  during the first extraordinary session of the Legislature, two

                  thousand six, of a violation of sections three [§ 61-8B-3] or

                  seven [§ 61-8B-7], article eight-b, chapter sixty-one of this code

                  and sentenced pursuant to section nine-a [§61-8B-9a], article

                  eight-b, chapter sixty-one of this code, shall be no less than ten

                  years: Provided, however, That a defendant designated after the

                  effective date of this section as amended and reenacted during

                  the first extraordinary session of the Legislature, two thousand

                  six, as a sexually violent predator pursuant to the provisions of

                  section two-a [§ 15-12-12a], article twelve, chapter fifteen of

                  this code shall be subject, in addition to any other penalty or

                  condition imposed by the court, to supervised release for life:

                  Provided further, That, pursuant to the provisions of subsection

                  (g) of this section, a court may modify, terminate or revoke any
                  term of supervised release imposed pursuant to (a) of this
                  section.

(Emphasis added).

       We note that the statute was again amended in 2015 with the amendments effective
May 26, 2015. Regardless of the effective date of any amendments to West Virginia Code
§ 62-12-26, the holdings today regarding the ex post facto clause apply. Consequently, for
purposes of citing West Virginia Code § 62-12-26 within this opinion, we do not give any
particular date with the supervised release statute.

                                                  3

custodian.4 The crimes were alleged to have been perpetrated against the Petitioner’s step-

granddaughter.



              On January 24, 2005, following a jury trial, the Petitioner was found guilty on

all counts.5 The circuit court held a sentencing hearing on August 5, 2005, and by order

entered on October 10, 2005, the circuit court sentenced the Petitioner to the penitentiary as

follows: an indeterminate term of not less than one nor more than five years for the

conviction of sexual abuse in the first degree as set forth in Count I of the indictment; an

indeterminate term of not less than one nor more than three years for the conviction of

attempt to commit the felony of sexual assault in the first degree as set forth in Count II of

the indictment; an indeterminate term of not less than fifteen nor more than thirty-five years

for the conviction of sexual assault in the first degree as set forth in Count III of the

indictment; and an indeterminate term of not less than ten nor more than twenty years for the

conviction of sexual abuse by a custodian as set forth in Count IV of the indictment. The

sentences were to run concurrent with one another.



              The circuit court then suspended the imposition of the Petitioner’s sentences



       4
      There is no dispute that the offenses in the indictment fell within the purview of the
enumerated sex offenses found in West Virginia Code § 62-12-26. See supra n.3.
       5
        The Petitioner appealed his convictions to this Court and his petition for appeal was
refused.

                                              4

as to Counts I, II, and III of the Indictment only and further ordered that when the Petitioner

was discharged from the penitentiary after serving the ten to twenty year sentence for his

sexual abuse by a custodian conviction that he “shall be placed on probation for a period of

ten (10) years” with the following conditions:

              1.	    That the defendant pay his court costs within two (2) years of his
                     release from incarceration or his driver’s license will be subject to
                     suspension;
              2.	    That the defendant obey all laws;
              3.	    That the defendant not use any alcohol/drugs, or have any in his
                     possession, unless prescribed by a physician;
              4.	    That the defendant be subject to random urinalysis;
              5.	    That the defendant not associate with anyone who abuses drugs/alcohol
                     or convicted felons;
              6.	    That the defendant not frequent places where drugs/alcohol are served
                     or used;
              7.	    That the defendant not be around any children under the age of 18
                     years;
              8.	    That the defendant register as a sexual offender;
              9.	    That the defendant participate in sexual offender treatment.



              The Petitioner was discharged from the State of West Virginia Division of

Corrections due to the expiration of his sentence on January 24, 2015. According to the

Petitioner, he registered as a sex offender and reported to the Mercer County Probation

Office.



              On March 2, 2015, the circuit court held a hearing to examine the previously




                                              5

imposed probationary period. According to the appendix record,6 the hearing took place due

to a probation officer, who was going to supervise the Petitioner’s term of probation, noticing

that the sentencing order indicated that the Petitioner was to serve a ten-year term of

probation. Two probation officers, the assistant prosecutor, the Petitioner and his counsel

were present at this hearing. As indicated in the hearing transcript, Kimberly Moore, the

Mercer County Adult Probation Officer, stated to the circuit court: “Your Honor, upon

placing Mr. Deel on probation following discharge on January 24th I noticed that the Court

order, the sentencing order that was prepared indicated that he was to be placed on probation

for ten years.” The circuit court immediately responded: “Which you can’t do.”7 The circuit

court questioned “what kind of extended supervision is he supposed to be on?” The circuit

court later questioned “[i]sn’t he also supposed to be on your supervision, too?” The Sex

Offender Intensive Supervision Officer, Jennifer Lester, responded that he was. The court

then questioned: “And haven’t they already ruled in these cases that that’s not ex post facto,

that you know, that should have been done at the time? Right?” To which Ms. Moore

responded: “Yes.” The prosecutor then qualified: “Well, at the time, Your Honor, I believe

it [referring to the supervised release statute] was zero to fifty years and then my

understanding, it got modified in about 2008 to be the minimum ten years supervision, up to


       6
        Contrary to the circuit court’s March 10, 2015, order that the hearing was “upon
defendant’s motion to modify probation[,]”no motion was made by the Petitioner regarding
his probation either in writing or orally at this hearing.
       7
       Pursuant to West Virginia Code § 62-12-11 (2014) the “period of probation together
with any extension thereof shall not exceed five years.”

                                              6

fifty.” The court responded: “Well, if it isn’t ex post facto, it isn’t ex post facto, right?”

The prosecutor then suggested that the court sentence the Petitioner to five years probation

and then five years supervised release following that, making the total ten years. The circuit

court, however, felt that it could not do that and indicated that the 2008 statute controlled.



                 According to the hearing transcript, the circuit court proceeded to probate the

Petitioner on the balance of the fifteen to thirty-five year sentence for sexual assault in the

first degree and placed him on probation for a period of five years. Then, the circuit court

placed the Petitioner on “extended supervision for twenty years.” There was no objection

by the Petitioner to this sentence until near the end of the hearing. At that time, the

Petitioner’s counsel stated the following to the circuit court: “I look at this a little bit

differently. In that Judge Frazier8 had the authority to sentence him to the supervised

probation from zero to fifty and in that he didn’t, I believe that he sentenced him to zero.”

(Footnote added). The circuit court responded: “Go to the Supreme Court.” The Petitioner’s

counsel then argued: “In addition, I just wanted to mention – I request that it be five years

rather than twenty years.” The circuit court again responded: “Denied. Go to the Supreme

Court.”



                 On March 10, 2015, the circuit court entered its order memorializing what


       8
           Judge Frazier was the trial judge who first sentenced the Petitioner.

                                                7

transpired at the second sentencing hearing wherein the Petitioner’s probationary period was

“modified to five (5) years followed by twenty (20) years of intensive supervision as a sex

offender.” The instant appeal followed from this order.



                             II. STANDARD OF REVIEW

              This case is an appeal from a sentencing order. As we previously held in

syllabus point one of State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997), “[t]he Supreme

Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion

standard, unless the order violates statutory or constitutional commands.” Accord Syl. Pt.

1, State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011). With this standard in mind, we

proceed with an examination of the issue before us.



                                     II. DISCUSSION

              The critical and decisive issue in this case, which is grounded in the application

of the ex post facto clauses of the West Virginia and United States Constitutions, focuses

upon the imposition of a twenty-year period of supervised release by the circuit court upon

the Petitioner. At the time the Petitioner committed the offenses for which he was convicted

in September of 2001, the supervised release statute, West Virginia Code § 61-12-26, had

not been enacted. As matter of fact, the supervised release statute was not enacted by the

Legislature until 2003 almost two years after the offenses charged occurred. The Petitioner



                                              8

did not make any argument regarding his constitutional rights under the ex post facto clause

when it came up during the second hearing before the circuit court. Further, the Petitioner

states in his brief before this Court that he is not making a due process or an ex post facto

argument. Specifically, the Petitioner, relying upon this Court’s decision in Hensler v. Cross,

210 W. Va. 530, 558 S.E.2d 330 (2001),9 “acknowledges that the requirements of sex-

offender supervision and sex-offender registration are civil in nature and can therefore be

applied retroactively.” In turn, the State recognizes the Petitioner’s concession as follows:

“The petitioner acknowledges that supervised release is civil in nature (as is sex offender

registration) and can be applied retroactively.” According to the State, the final sentence that

was imposed upon the Petitioner is “within legal limits, and not based on any impermissible

factor and should not be reviewed.”



                 The parties’ arguments or concessions that the ex post facto issue had already

been resolved and the ex post facto law does not apply to West Virginia Code § 62-12-26

illustrate a grave misconception concerning ex post facto law and its application to the

supervised release statute. The fallacy that exists concerning the supervised release statute

emanates first from the notion that supervised release is civil and regulatory in nature like the

Sex Offender Registration Act, found in West Virginia Code §§ 15-12-1 to -10 (2014). It

also stems from the language of the supervised release statute itself. See W. Va. Code § 62­


       9
           See discussion infra n.11.

                                                9

12-26. We must rectify this misapplication of the law because it has so permeated our

supervised release law that even this Court has issued two memo decisions,10 which are

incorrect in the manner in which we examined ex post facto challenges to West Virginia

Code § 62-12-26.



              Our discussion begins with this fundamental precept of ex post facto doctrine:

“Under ex post facto principles of the United States and West Virginia Constitutions, a law

passed after the commission of an offense which increases the punishment, lengthens the

sentence or operates to the detriment of the accused, cannot be applied to him.” Syl. pt. 1,

Adkins v. Bordenkircher, 164 W.Va. 292, 262 S.E.2d 885 (1980); see Collins v. Youngblood,

497 U.S. 37, 42 (1990) (“‘It is settled, by decisions of this Court so well known that their

citation may be dispensed with, that any statute which punishes as a crime an act previously

committed, which was innocent when done; which makes more burdensome the punishment

for a crime, after its commission, or which deprives one charged with crime of any defense

available according to law at the time when the act was committed, is prohibited as ex post

facto.’”). We recently reiterated this tenet of ex post facto law in syllabus point twelve of

State v. Shingleton, ___ W. Va. ___, ___S.E.2d___, 2016 WL 1192921 (W. Va. March 24,

2016):


         10
        See State v. Howard C., No. 14-0485, 2015 WL 5125834 (W. Va. Aug. 31, 2015)
(memorandum decision); State v. Payne, No. 11-0825, 2012 WL 2892245 (W. Va. Feb. 13,
2012) (memorandum decision).

                                             10
                      “When a criminal defendant is convicted of a crime and
              the penal statute defining the elements of the crime and
              prescribing the punishment therefor is repealed or amended
              after his/her conviction of the crime but before he/she has been
              sentenced therefor, the sentencing court shall apply the
              penalties imposed by the statute in effect at the time of the
              offense, except where the amended penal statute provides for
              lesser penalties. If the amended penal statute provides lesser
              penalties for the same conduct proscribed by the statute in effect
              at the time of the offense, the defendant shall have an
              opportunity to elect under which statute he/she wishes to be
              sentenced, consistent with the statutory mandate contained in W.
              Va. Code § 2-2-8 (1923) (Repl. Vol. 1994) and our prior
              directive set forth in Syllabus point 2 of State ex rel. Arbogast
              v. Mohn, 164 W.Va. 6, 260 S.E.2d 820 (1979).” Syl. Pt. 6, State
              v. Easton, 203 W.Va. 631, 510 S.E.2d 465 (1998).

(emphasis added); see also Shingleton, ___ W. Va. at ___, ___ S.E.2d at ___, 2016 WL

1192921 at *2, Syl. Pt. 13, in part (holding, in part, that “[t]he statutory penalty in effect at

the time of a defendant’s criminal conduct shall be applied to the defendant’s conviction(s).”)

(emphasis added).



              In accordance with the principles of ex post facto law, if the imposition of an

extended period of supervised release is a criminal, punitive penalty,11 then the application


       11
          Conversely, in syllabus point five of Hensler, we held that “[t]he Sex Offender
Registration Act, W. Va. Code §§ 15-12-1 to 10, is a regulatory statute which does not
violate the prohibition against ex post facto laws.” 210 W. Va. at 531, 558 S.E.2d at 331,
Syl. Pt. 5; see State ex rel. Collins v. Bedell, 194 W. Va. 390, 400 n.7, 460 S.E.2d 636, 646
n.7 (1995) (providing that “ex post facto principle is applicable only in criminal matters. See
Tanner v. Workers’ Compensation Comm’r, 176 W. Va. 427, 430, 345 S.E.2d 29, 32
(1986).”); see also Syl. Pt. 5, Haislop v. Edgell, 215 W. Va. 88, 593 S.E.2d 839 (2003)
(holding that “[t]he application of W. Va. Code § 15-12-4 (2000), which requires life
                                                                                 (continued...)

                                               11

of the statute to a defendant could violate a defendant’s constitutional rights under the ex post

facto clause. See Adkins, 164 W. Va. at 292, 262 S.E.2d at 885, Syl. Pt. 1. In State v. James,

227 W. Va. 407, 710 S.E.2d 98 (2011), this Court in addressing several constitutional

challenges12 to the supervised release statute determined that “[f]undamentally, the statute

provides that a court impose a period of extended supervision as part of the criminal sentence

for certain specified offenses, and sets forth the manner in which the supervision is to be

administered and enforced.” Id. at 414, 710 S.E.2d at 105. Further, we noted that “[t]he

general premise clearly states the intent of the Legislature that the sentence imposed for

certain felony offenses must include the additional penalty of a period of supervised release

of up to fifty years.” Id. Finally, we decided that “[t]he imposition of the legislatively

mandated additional punishment of a period of supervised release [i]s an inherent part of

the sentencing scheme for certain offenses enumerated in West Virginia Code § 62-12-26



       11
         (...continued)
registration for certain sexual offenders, or W. Va. Code § 15-12-5 (2001), which allows for
public dissemination of certain information about life registrants, to individuals who were
convicted before the Legislature added these requirements to the Sex Offender Registration
Act does not violate the ex post facto clause of the West Virginia Constitution[]” as it is
regulatory and not punitive.).
       12
         The constitutional challenges in James were predicated upon the cruel and unusual
punishment clause as set forth in the Eighth Amendment to the United States Constitution
and article III, section 5 of the West Virginia Constitution, the procedural due process clause
and right to a jury trial set forth in the Fifth and Sixth Amendments to the United States
Constitution and article III, section 10 of the West Virginia Constitution, and the double
jeopardy clause as set forth in Amendment V to the United States Constitution and article III,
section 5 of the West Virginia Constitution. See 227 W. Va. at 102, 710 S.E.2d at 411.
There was no ex post facto challenge in James.

                                               12

(2009),” in determining that the statute, on its face, did not violate the double jeopardy

provisions in either the United States Constitution or the West Virginia Constitution. See id.

at 411, 710 S.E.2d at 102, Syl. Pt. 11, in part (emphasis added).



              Given our recognition in James of the punitive nature of the extended

supervised release statute, we now hold that the supervised release statute, West Virginia

Code § 62-12-26, provides for an additional penalty to be imposed upon a person who

committed of any of the enumerated sex offenses set forth therein. Any retroactive

application of the supervised release statute to an individual who committed any of the

enumerated sex offenses prior to the effective date of the supervised release statute violates

the constitutional prohibition against ex post facto laws set forth in article III, section 4 of

the West Virginia Constitution and Article I, Section 10 of the United States Constitution.



              Consequently, based upon the foregoing, we now need to correct our erroneous

application of ex post facto law concerning the extended supervised release statute that exists

in memorandum decisions issued by this Court. We address these memorandum decisions

in the context of the law set forth in State v. McKinley, 234 W. Va. 143, 764 S.E.2d 303

(2014). In McKinley, we held in syllabus point four that “[m]emorandum decisions are

decisions by the court that are not signed, do not contain a Syllabus by the Court, and are not

published.” Id. at 146, 764 S.E.2d at 306, Syl. Pt. 4. We further held in syllabus point five



                                              13

that “[w]hile memorandum decisions may be cited as legal authority, and are legal precedent,

their value as precedent is necessarily more limited; where a conflict exists between a

published opinion and a memorandum decision, the published opinion controls.” Id., Syl.

Pt. 5.



              First, in State v. Payne, No. 11-0825, 2012 WL 2892245 (W. Va. Feb. 13,

2012) (memorandum decision), we restated the State’s argument concerning West Virginia

Code § 62-12-26 that “[e]x post facto principles do not apply because the intent of the statute

is not punishment, but rather supervision and regulation.” Id. at *2. The State’s argument

is incorrect and we now disavow it.13



              Next, in State v. Howard C., No. 14-0485, 2015 WL 5125834 (W. Va. Aug.

31, 2015) (memorandum decision), the petitioner challenged the application of the extended

supervision statute to him, because the requirements changed effective October 1, 2006,

“well beyond the crime’s commission in 1999.” Id. at *3. Consequently, the petitioner

argued that the imposition of the extended supervision statute violated his rights under the

ex post facto clause of the United States Constitution and the West Virginia Constitution.

We rejected the petitioner’s argument based upon the following:



         13
         In Payne, we simply restated an erroneous argument made by the State. Because the
case did not turn either on the incorrect argument or any application of ex post facto law, we
find it unnecessary to overrule the Payne memorandum decision.

                                              14

                      We have previously held that supervised release and
              registration requirements for convicted sex offenders do not
              violate the ex-post facto clauses of the West Virginia and United
              States constitutions, as the aforementioned requirements are
              civil in nature, rather than punitive, and carry with them a
              legislative intent of supervision for the purposes of public
              safety. See generally Hensler v. Cross, 210 W. Va. 530, 558
              S.E.2d 330 (2001); Haislop v. Edgell, 215 W. Va. 88, 593
              S.E.2d 839 (2003). Further, we have also found that the
              increased registration and supervision requirements have not
              impacted procedural due process safeguards, or invoked
              consideration under constitutional protections against cruel and
              unusual punishment or double jeopardy. See generally State v.
              James, 227 W. Va. 407, 710 S.E.2d 98 (2011); State v. Hargus,
              232 W. Va. 735, 753 S.E.2d 893 (2013). In fact, in his petition,
              petitioner concedes that unsuccessful ex post facto challenges
              have previously been made to the West Virginia Sex Offender
              Registration Act. In making his argument, petitioner relies on
              rulings from other states interpreting their own reporting and
              registration statutes. This Court, however, does not find these
              authorities persuasive and, based upon West Virginia
              jurisprudence, finds that petitioner is entitled to no relief.

Id. at *3.



              The analysis and law regarding the supervised release statute contained within

the Howard C. memorandum decision is incorrect. As has been clear since the enactment

of the supervised release statute, and which this Court recognized in James, the language of

West Virginia Code § 62-12-26 is punitive, not regulatory and, consequently, ex post facto

principles may be implicated under the application of the supervised release statute to the

facts of any given case. We, therefore, expressly overrule the memorandum decision in

Howard C. only insofar as that decision directly conflicts with our established law


                                             15

concerning the application of ex post facto principles to the provisions of West Virginia Code

§ 62-12-26 and the signed opinion issued in the case sub judice.14



              We also find it necessary to address the language of West Virginia Code § 62­

12-26 to the extent that it expressly sets forth that “any defendant convicted after the

effective date” is subject to the imposition of a term of extended supervised release. Id. As

discussed supra, “a law passed after the commission of an offense which increases the

punishment, lengthens the sentence or operates to the detriment of the accused, cannot be

applied to him.” Adkins, 164 W. Va. at 292, 262 S.E.2d at 885, Syl. Pt. 1, in part.

Consequently, as written, the statute has the potential to be violative of an individual’s

constitutional rights under the ex post facto clause found in both the West Virginia and

United States Constitutions if the individual committed the offense prior to the effective date

identified by the statute. For purposes of assessing constitutional rights under the ex post

facto clause of any penal statute intended to punish a person, the triggering date is the date

of the offense. In light of the confusion caused by the language of the statute, we now hold

that in order to avoid the constitutional prohibition against ex post facto laws, West Virginia

Code § 62-12-26 must not be applied to those individuals who committed any of the

enumerated sex offenses set forth in the supervised release statute prior to the date the


       14
        Upon being apprised of the Court’s decision herein, counsel in Howard C. may
proceed as they deem appropriate to correct the period of supervised release that was
imposed in that case, such as seeking relief pursuant to Rule 35 of the West Virginia Rules
of Criminal Procedure.

                                              16

supervised release statute became effective regardless of any contrary language contained in

West Virginia Code § 62-12-26.15



               Now we turn to the law set forth herein and its application to the Petitioner’s

case. Initially, we note that the Petitioner failed to object before the circuit court to any error

concerning his constitutional rights under the ex post facto clause and failed to argue the

issue on appeal. These failures, however, do not mean that the Petitioner waived his

constitutional rights afforded to him by the ex post facto clause nor does it preclude us from

examining an issue under a plain error analysis. We previously held that “[t]his Court’s

application of the plain error rule in a criminal prosecution is not dependent upon a defendant

asking the Court to invoke the rule. We may, sua sponte, in the interest of justice, notice

plain error.” Syl. Pt. 1, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998). Further,

regarding the Petitioner’s failure to bring an error of constitutional magnitude before the

Court, we held in syllabus point eight of State v. Miller, 194 W. Va. 3, 459 S.E.2d 114

(1995):

                      Under the “plain error” doctrine, “waiver” of error must
               be distinguished from “forfeiture” of a right. A deviation from
               a rule of law is error unless there is a waiver. When there has
               been a knowing and intentional relinquishment or abandonment
               of a known right, there is no error and the inquiry as to the effect
               of a deviation from the rule of law need not be determined. By
               contrast, mere forfeiture of a right—the failure to make timely


       15
         We strongly encourage the Legislature to amend this statute to comport with the ex
post facto clause of both the West Virginia Constitution and the United States Constitution.

                                                17

               assertion of the right—does not extinguish the error. In such a
               circumstance, it is necessary to continue the inquiry and to
               determine whether the error is “plain.” To be “plain,” the error
               must be “clear” or “obvious.”



               A review of the record in this case indicates that no one, not even the circuit

court when it sentenced the Petitioner to supervised release, appreciated the fact that the

imposition of a period of supervised release in this case had constitutional ramifications. See

discussion supra. Although the circuit court raised ex post facto concerns during the

sentencing hearing to correct the probationary period, it was under the mistaken impression

that this Court had already decided the issue and that the ex post facto clause did not apply to

the supervised release statute. This fallacy, which continued to be perpetuated in the instant

appeal, is the epitome of plain error. Consequently, there was no “knowing and intentional

relinquishment or abandonment of a known right” by the Petitioner in this case because no

one understood or considered the Petitioner’s constitutional rights under the facts of this case

in the context of ex post facto law. See id. When considered as a forfeiture of a right under

the law enunciated in Miller, the Petitioner’s failure to timely assert his constitutional rights

in this case does not extinguish the constitutional error. See id.



               Under our law, “[t]o trigger application of the ‘plain error’ doctrine, there must

be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the

fairness, integrity, or public reputation of the judicial proceedings.” Miller, 194 W. Va. at 7,


                                                 18

459 S.E.2d at 118, Syl. Pt. 7. Moreover,

                      An unpreserved error is deemed plain and affects
              substantial rights only if the reviewing court finds the lower court
              skewed the fundamental fairness or basic integrity of the
              proceedings in some major respect. In clear terms, the plain error
              rule should be exercised only to avoid a miscarriage of justice.
              The discretionary authority of this Court invoked by lesser errors
              should be exercised sparingly and should be reserved for the
              correction of those few errors that seriously affect the fairness,
              integrity, or public reputation of the judicial proceedings.


Syl. Pt. 7, State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996). Based upon the

foregoing, the imposition of a twenty-year period of supervised release upon the Petitioner

violated his constitutional rights under the ex post facto clause, because the sex offenses that

he was convicted of were committed in 2001, which was prior to the effective date of the

supervised release statute in 2003. See W. Va. Code § 62-12-26. The error was plain,

unquestionably affected the Petitioner’s substantial rights and “seriously affects the fairness,

integrity, or public reputation of the judicial proceedings.” Miller, 194 W. Va. at 7, 459 S.E.2d

at 118, Syl. Pt. 7. Accordingly, we reverse only the circuit court’s imposition of a period of

supervised release as part of the Petitioner’s sentence and remand for entry of a new

sentencing order that comports with the law enunciated in this opinion.16



                                     IV. CONCLUSION



       16
        We reiterate that only the supervised release portion, see West Virginia Code § 62­
12-26, of the Petitioner’s sentence is affected by our decision today.

                                               19

                For the foregoing reasons, the circuit court’s March 10, 2015, sentencing order

is reversed and the case is remanded for entry of a new sentencing order that comports with

this opinion.



                                                                     Reversed and remanded.




                                               20

