          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                January 2013 Term

                                                                 FILED
                                                            February 22, 2013
                                    No. 11-1156                released at 3:00 p.m.
                                                               RORY L. PERRY II, CLERK
                                                             SUPREME COURT OF APPEALS
                                                                 OF WEST VIRGINIA



                               CHARLES ELDER,
                            Defendant Below, Petitioner

                                         v.

               ANNABELLE SCOLAPIA, HOME INCARCERATION

                    OFFICER FOR HARRISON COUNTY

                        Plaintiff Below, Respondent




                  Appeal from the Circuit Court of Harrison County

                         Honorable James A. Matish, Judge

                            Civil Action No. 10-C-103-3


                                    AFFIRMED



                            Submitted: January 8, 2013
                             Filed: February 22, 2013

Steven T. Cook, Esq.                                Patrick Morrisey, Esq.
Stapleton Law Offices                               Attorney General
Huntington, West Virginia                           Laura Young, Esq.
Attorney for Petitioner                             Assistant Attorney General
                                                    Charleston, West Virginia
                                                    Attorneys for Respondent


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




              1. “In reviewing challenges to the findings and conclusions of the circuit court

in a habeas corpus action, we apply a three-prong standard of review. We review the final

order and the ultimate disposition under an abuse of discretion standard; the underlying

factual findings under a clearly erroneous standard; and questions of law are subject to a de

novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).



              2. An offender who has been sentenced pursuant to the Home Incarceration

Act, West Virginia Code §§ 62-11B-1 to -13 (2010), and is accordingly subject to substantial

restrictions on his or her liberty by virtue of the terms and conditions imposed by a home

incarceration order, which include arrest and resentencing for a violation of those terms and

conditions, is “incarcerated under sentence of imprisonment” for purposes of seeking post-

conviction habeas corpus relief under West Virginia Code § 53-4A-1 (2008).



              3. “In the West Virginia courts, claims of ineffective assistance of counsel are

to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance was deficient under

an objective standard of reasonableness; and (2) there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceedings would have been different.”

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
LOUGHRY, Justice:



              Petitioner Charles R. Elder appeals from the denial of his petition for a writ of

habeas corpus as set forth in two orders separately entered by the Circuit Court of Harrison

County on July 11, 2011. Mr. Elder, who is serving a criminal sentence by the alternate

means of home incarceration,1 sought relief in habeas corpus solely for sentencing and post-

sentencing matters. Following an omnibus hearing, the trial court denied the petition with

regard to the ground of ineffective assistance of counsel but modified the terms of

Petitioner’s home incarceration to afford Mr. Elder one hour per day of recreational time

outside the physical confines of his house but within the parameters of his yard; to authorize

the least restrictive type of home monitoring device; and to permit travel outside this state

for necessary medical appointments. As part of its ruling, the trial court denied Petitioner’s

request to attend services at a specified church that would have required an hour and a half

of driving time round trip. Through this appeal, Mr. Elder seeks immediate release from any

further incarceration in light of his continuing deterioration due to Parkinson’s disease. Upon

our careful review of the record in this matter, we find no basis for habeas corpus relief or

for further modification of the terms of Petitioner’s sentencing. Accordingly, we affirm.




       1
        With amendments that were adopted in 1994, the act previously known as the Home
Confinement Act was renamed the Home Incarceration Act. See W.Va. Code § 62-11B-3
(1994).

                                              1

                           I. Factual and Procedural Background

                 On December 8, 2008, Petitioner entered a plea of guilt to one count of sexual

abuse by a person in a position of trust and one count of third degree sexual assault.2

Following the completion of a presentence investigation, a psychological evaluation, and a

sex offender evaluation, the sentencing hearing was scheduled for February 12, 2009. After

receiving testimony from two witnesses called on Petitioner’s behalf as well as the victim’s

mother, the trial court sentenced Mr. Elder to ten to twenty years for his plea of guilt to

sexual abuse by a person in a position of trust and one to five years for his plea of guilt to

third degree sexual assault. Over the State’s objection, the trial court ordered that these

sentences were to run concurrently3 and, due to Petitioner’s health concerns, permitted Mr.

Elder to serve his sentences by the alternate means of electronically-monitored home

incarceration.4

       2
        During the investigation of these charges, the State obtained information that
Petitioner had committed numerous sexual assaults against his two stepdaughters while they
were minors. Reluctant to relive those incidents through trial testimony, the stepdaughters
preferred that this matter be resolved by plea agreement provided that Mr. Elder was likely
to receive a significant sentence. According to the State’s Response to the Petition for Post
Conviction Writ of Habeas Corpus, the terms of the plea agreement offered in this case
expressly included the State’s decision not to prosecute Mr. Elder for the sexual conduct
perpetrated against his two stepdaughters between 1960-1978.
       3
           The State had requested that Petitioner be sentenced to consecutive terms.
       4
       In addition to the standard terms of home incarceration, the following conditions
were imposed upon Petitioner: (1) That he not possess pornographic materials in his home;
(2) That he not take erectile dysfunction medicine; (3) That he attend Matt Deluca’s sex
offender treatment for three years; and (4) That he comply with the terms and conditions of
                                                                             (continued...)

                                                2

               Petitioner filed a post-conviction writ of habeas corpus on March 18, 2010.

Through the omnibus hearing held on August 25 and December 2, 2010,5 Petitioner raised

a variety of concerns, the bulk of which centered on his desire to modify the terms of his

home incarceration.6 Specific items for which he sought the trial court’s approval included

walking the dog; getting the newspaper; gardening; travel to Texas to visit friends; thrice

weekly church attendance; and replacement of his ankle monitoring device. Also raised as

a ground for the petition was ineffective assistance of counsel. This ground was expressly

limited to counsel’s failure to initiate an appeal with regard to the sentencing imposed by the

trial court.



               In the first of the two orders entered on July 11, 2011, the trial court addressed

Petitioner’s ineffective assistance of counsel claim. The trial court determined that this claim

was based on two allegations: the failure of Mr. Elder’s former counsel, Thomas G. Dyer,

to file an appeal following the sentencing order and his failure to file a motion for



        4
       (...continued)
supervised release during the period of his home confinement.
        5
        The trial court decided to continue the hearing as two witnesses whose testimony was
relevant to the issue of ineffective assistance of counsel–Thomas G. Dyer and D. Conrad
Gall–had not been subpoenaed to appear at the hearing.
        6
         Petitioner’s counsel stated at the December 2, 2010, omnibus hearing that a habeas
petition was filed based on Mr. Elder’s deteriorating medical condition because it was too
late to file a motion for reconsideration of sentencing under Rule 35 of the West Virginia
Rules of Criminal Procedure.

                                               3

reconsideration of sentencing in a timely manner. The trial court applied the test we adopted

in State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), and concluded that Mr. Dyer’s

representation of Mr. Elder was not deficient under an objective standard of reasonableness.

In both instances, the trial court found that Mr. Dyer took the necessary actions that a

reasonable criminal defense attorney would have taken in a similar situation. As an

additional matter, the trial court found the record devoid of evidence that Petitioner had

instructed Mr. Dyer to file an appeal on his behalf or to file a motion for reconsideration of

sentence. After concluding that Petitioner had failed to meet his burden of proof under

Miller, the trial court denied Mr. Elder’s request for habeas corpus relief on the ground of

ineffective assistance of counsel.



              In the second order entered on July 11, 2011, the trial court addressed the

remaining grounds asserted by Petitioner in either his habeas petition or during the course

of the omnibus hearings.7 Based on the evidence adduced at the hearings and information

obtained from the Department of Corrections with regard to the recreational time allotted to

inmates on a daily basis,8 the trial court ordered that Petitioner should be afforded one hour


       7
        Petitioner did not assert a denial of his right to exercise his religious freedom as part
of his habeas petition; the issue was raised during the December 2, 2010, omnibus hearing.
       8
        At the close of the omnibus hearing held on August 25, 2010, the trial court directed
the Home Incarceration Supervisor, Respondent Scolapia, to request the rules, regulations,
and all other pertinent information relevant to the outside therapy/recreation (yard time)
provided to inmates by the Department of Corrections.

                                               4

of recreation time outside his home per day while remaining within the physical confines of

his yard. Responding to Mr. Elder’s concerns about the physical effects of the ankle monitor,

the trial court directed that the least restrictive home monitoring device be utilized.9 The trial

court also ordered that Petitioner be permitted to leave the state for properly scheduled and

necessary medical appointments related to his health condition of Parkinson’s disease.10

With regard to Petitioner’s request that he be permitted to attend services at the Weston

Church of God three times a week,11 the trial court first considered the fact that Mr. Elder had

not been regularly attending church immediately before being placed on home incarceration.

Concerned with the need to protect any children who would be attending those church

services, the trial court weighed this concern with Petitioner’s request to exercise his freedom

of religion in this particular manner and decided that Mr. Elder’s request to attend those

specific church services should be denied. Based on evidence that both the Weston Church

of God’s pastor and its congregants had been visiting with Mr. Elder in his home and

engaging in Bible study during those visits, the trial court ruled that Petitioner’s religious

rights were not being violated.

       9
           As a result of this ruling, Petitioner is currently using a wrist monitoring device.
       10
         Petitioner’s counsel indicated during the omnibus hearing that a treating physician,
Dr. Sidney Jackson, wanted Mr. Elder to see a neurologist in Pittsburgh, Pennsylvania. Upon
questioning from the trial court, however, it was revealed that no appointment had been
scheduled for any out-of-state medical treatment and, further, that no request had been made
with the home incarceration office to allow for such travel.
       11
       The services that Petitioner sought to attend at the Weston Church of God are held
on Sunday mornings, Sunday evenings, and Wednesday evenings.

                                                 5

              Through this appeal, Petitioner seeks a reversal of the trial court’s rulings

insofar as the trial court did not fully release him from his home incarceration and/or place

him on probation.



                                  II. Standard of Review

              As we explained in syllabus point one of Mathena v. Haines, 219 W.Va. 417,

633 S.E.2d 771 (2006), our review is governed by the following standard:

                      In reviewing challenges to the findings and conclusions
              of the circuit court in a habeas corpus action, we apply a three-
              prong standard of review. We review the final order and the
              ultimate disposition under an abuse of discretion standard; the
              underlying factual findings under a clearly erroneous standard;
              and questions of law are subject to a de novo review.

With this standard in mind, we proceed to determine whether the circuit court committed

error in denying habeas corpus relief to Petitioner.12



                                       III. Discussion

                           A. Applicability of Habeas Corpus

              As an initial matter, we wish to address a concern first articulated by James

Armstrong, the assistant prosecutor, in responding to Petitioner’s filing of the subject habeas


       12
         The relief that the trial court awarded Petitioner in terms of altering the type of his
electronic-monitoring device; providing for daily exercise time outside of his home; and
authorizing out-of-state medical treatment was a modification of the terms of Mr. Elder’s
home incarceration rather than a remedy warranted under principles of habeas corpus.

                                               6

petition. Given that the post-conviction habeas statute provides relief to someone who is

“incarcerated under sentence of imprisonment,” Mr. Armstrong questioned whether an

individual who is not incarcerated in a prison or jail cell has standing to assert a post-

conviction habeas claim. See W.Va. Code § 53-4A-1. Echoing this argument, Respondent

Scolapia, the Home Incarceration Supervisor for Harrison County, reasons that individuals

on home confinement are not entitled to seek relief in habeas corpus based on our previous

recognition that the definition of incarceration entails “confinement in a jail or penitentiary.”

See State ex rel. Goff v. Merrifield, 191 W.Va. 473, 477, 446 S.E.2d 695, 699 (1994). Not

only does Respondent fail to attribute Black’s Law Dictionary as the proper source of that

definition, but she overlooks the reason for the lexical reference in Merrifield. This Court’s

reference to the common usage of the term “incarceration” was prompted by a need to

determine whether confinement within the county jail as a condition of probation qualified

as a “sentence” for purposes of applying statutory good time credit. See Merrifield, 191

W.Va. at 476-78, 446 S.E.2d at 698-700 (discussing application of W.Va. Code § 7-8-11).

As we made clear in State v. Lewis, 195 W.Va. 282, 465 S.E.2d 384 (1995): The statute

being interpreted governs whether home incarceration is encompassed within its reach. Id.

at 288, 465 S.E.2d at 390. Applying that concept in Lewis, this Court decided that for

purposes of the probation statute “home incarceration is not considered the same as actual

confinement in a county jail.” 195 W.Va. at 288, 465 S.E.2d at 390 (interpreting W.Va.

Code § 62-12-9(b)). Critically, this Court’s interpretation of “incarceration” or “home


                                               7

incarceration,” as those terms relate to the good time credit statute and the probation statute,

have no bearing on the meaning of such terms for purposes of the habeas statute under

review. See W.Va. Code § 53-4A-1.



              Until today, this Court has never squarely addressed the issue of whether home

incarceration constitutes the qualifying level of incarceration for purposes of seeking post-

conviction relief in habeas corpus. See id. Federal law leaves no doubt that the remedy of

habeas corpus is available to individuals on home incarceration. Beginning with its seminal

decision in Jones v. Cunningham, 371 U.S. 236 (1963), the United States Supreme Court has

broadly interpreted the “in custody” triggering language of the federal habeas statute, 28

U.S.C. § 2241, to extend to any situation where there are significant restraints on an

individual’s liberty. 371 U.S. at 242-43. The high court ruled in Jones that a parolee came

within the ambit of the “in custody” requirement based on the numerous limitations placed

upon his personal freedom, including the ongoing possibility that he could be rearrested at

any time upon a violation of a term or condition of his parole. Id.; see Hatch v. Lapin, 660

F.Supp.2d 104, 108 (D. Mass. 2009) (holding that revocation of home confinement was

proper subject of federal habeas corpus laws); Davis v. Nassau County, 524 F.Supp.2d 182,

187 (E.D. N.Y. 2007) (stating that “[p]hysical confinement is not necessary to satisfy the ‘in

custody’ requirement” of federal habeas corpus statutes); U.S. ex rel. Wojtycha v. Hopkins,

517 F.2d 420, 423-24 (3d Cir. 1975) (extending rationale of Jones to individuals on


                                               8

probation); see generally Syl. Pt. 4, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925)

(recognizing origin of writ of habeas corpus as challenge to improper restraint of liberty or

custody).



              Under the controlling habeas statute, post-conviction relief may be sought by

“[a]ny person convicted of a crime and incarcerated under sentence of imprisonment.”

W.Va. Code § 53-4A-1. While Respondent argues that Mr. Elder’s confinement in his own

home pursuant to the Home Incarceration Act disqualifies him from seeking post-conviction

habeas relief, we disagree. See W.Va. Code §§ 62-11B-1 to -13 (2010). We are not

persuaded by Respondent’s contention that the use of an alternate means of sentencing such

as home incarceration prevents an individual from asserting constitutional challenges13 to his

or her sentence. What is critical to the assertion of a post-conviction challenge to a criminal

sentence is whether that individual is “incarcerated” within the meaning of West Virginia

Code § 53-4A-1.



              In the same manner that the United State Supreme Court analyzed the trigger

for habeas corpus relief under federal law, we focus on whether there are substantial

restraints on an individual’s freedom to assist us in identifying the requisite basis for seeking


       13
         It is axiomatic that habeas corpus proceedings are limited to matters of constitutional
significance. See Edwards v. Leverette, 163 W.Va. 571, 576, 258 S.E.2d 436, 439 (1979)
(distinguishing nature of review in direct appeals as compared to habeas corpus proceedings).

                                               9

habeas corpus relief under state law. See Jones, 371 U.S. at 242. The fact that Petitioner is

serving his sentence in an alternate fashion subject to the terms of the Home Incarceration

Act does not mean that he has the freedom to come and go as he pleases; his daily activities

are subject to both the supervision and control of the Home Incarceration Office. See State

v. Long, 192 W.Va. 109, 111, 450 S.E.2d 806, 808 (1994) (recognizing that “entire statutory

scheme [of Home Incarceration Act] is designed to place substantial restrictions on the

offender”). The bulk of Petitioner’s complaints evidence his frustration with the significant

restrictions imposed on his daily life under the terms of his home incarceration.14 Mr.

Elder’s ongoing attempts to reduce the severity of those restrictions further manifest the

appreciable nature of those restrictions. As the assistant prosecutor correctly observed in

responding to Mr. Elder’s habeas petition, “[h]ome confinement is not designed to be fun or

enjoyable, nor is it supposed to afford a confinee with the same liberties he or she enjoyed

prior to being placed on home confinement.”



              Just as the United State Supreme Court equated the “in custody” trigger of the

federal habeas corpus statutes with the imposition of significant restraints on an individual’s



       14
         Petitioner’s former counsel, Thomas G. Dyer, testified at the omnibus hearing that
Mr. Elder called him once a week for several weeks at the beginning of the period of home
incarceration and indicated that he “wasn’t going to be able to survive these strict terms and
conditions of home confinement.” Mr. Dyer testified that Matt DeLuca, the sex offender
counselor, called on Petitioner’s behalf and similarly related that Mr. Elder was not
“tolerating the rather strict terms of this home confinement too well.”

                                              10

“liberty to do those things which . . . free men are entitled to do,” we find the existence of

significant restraints on Petitioner’s freedoms to be indicative of whether he is “incarcerated”

for purposes of post-conviction habeas review. Jones, 371 U.S. at 243; W.Va. Code § 53­

4A-1. As the record in this case makes clear, Petitioner does not enjoy the liberty to freely

wander the physical confines of his yard, let alone his community, this state, or this country.

Virtually every decision that he makes with regard to exiting his house is subject to the terms

of the home incarceration order. And, as is the case with any offender,15 a violation of the

terms of the controlling incarceration order can result in the revocation of that alternate

means of sentencing and the imposition of a traditional sentence in the penitentiary or jail.

See W.Va. Code § 62-11B-5(2) (requiring that home incarceration order contain “[n]otice

to the offender of the penalties which may be imposed if the circuit court or magistrate

subsequently finds the offender to have violated the terms and conditions in the order of

home incarceration”); see also Horton v. Dobbs, 2011 WL 3606369 at *27 (N.D. W.Va.

2011) (discussing authority of home incarceration supervisor to arrest “home incarceration

participant when reasonable cause exists to believe that such participant has violated the

conditions of his or her home incarceration”). Finally, the decision to retitle the Home




       15
         Under the Home Incarceration Act, an “offender” is defined as “any adult convicted
of a crime punishable by imprisonment or detention in a county jail or state penitentiary; or
a juvenile convicted of a delinquent act that would be a crime punishable by imprisonment
or incarceration in the state penitentiary or county jail, if committed by an adult.” W.Va.
Code § 62-11B-3(3).

                                              11

Confinement Act as the Home Incarceration Act,16 suggests a legislative recognition that

individuals who are serving their criminal sentences within the confines of their respective

homes are to be viewed as incarcerated rather than merely confined. See W.Va. Code § 62­

11B-3.



                   Based on the foregoing analysis, we hold that an offender who has been

sentenced pursuant to the Home Incarceration Act and is accordingly subject to substantial

restrictions on his or her liberty by virtue of the terms and conditions imposed by a home

incarceration order, which include arrest and resentencing for a violation of those terms and

conditions, is “incarcerated under sentence of imprisonment” for purposes of seeking post-

conviction habeas corpus relief under West Virginia Code § 53-4A-1. In view of the clear

and undisputed restrictions of a substantial nature that are currently imposed on Petitioner

pursuant to the governing home incarceration order combined with the ongoing possibility

that his alternative sentence could be revoked at any time, we have no difficulty in viewing

him as “incarcerated under sentence of imprisonment.” Id. As a result, Mr. Elder is entitled

to seek post-conviction habeas relief pursuant to West Virginia Code § 53-4A-1 for his

claims that are grounded in constitutional law.17




         16
              See supra note 1.

         17
              See supra note 13.


                                              12

                           B. Ineffective Assistance of Counsel

              In addressing Petitioner’s allegation of ineffective assistance of counsel, the

trial court applied the test we adopted in syllabus point five of State v. Miller, 194 W.Va. 3,

459 S.E.2d 114 (1995):

                     In the West Virginia courts, claims of ineffective
              assistance of counsel are to be governed by the two-pronged test
              established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
              2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance was
              deficient under an objective standard of reasonableness; and (2)
              there is a reasonable probability that, but for counsel’s
              unprofessional errors, the result of the proceedings would have
              been different.

After distilling Mr. Elder’s representational concern into two complaints–failure to file an

appeal and failure to file a motion for reconsideration of sentence–the trial court proceeded

to apply the test we adopted in Miller.



              In considering Petitioner’s complaint that his former counsel, Thomas G. Dyer,

failed to file an appeal on his behalf, the trial court reviewed the testimony of Mr. Dyer at the

omnibus hearing in conjunction with the record in this matter. While Mr. Dyer testified that

he discussed the right to appeal the sentence with his client,18 he further indicated to Mr.

Elder that such an appeal “would be completely meritless.” In clarification of this advice,

Mr. Dyer related that following the sentencing hearing he informed Petitioner that he was


       18
         Petitioner acknowledges that Mr. Dyer’s “performance was exemplary up and until
the sentencing phase of the underlying proceedings.”

                                               13

“one of the luckiest men I’ve ever represented in twenty-three years”19 and indicated

additionally that he did not see any basis for appeal.



               Upon its review of the record, the trial court concluded that there was no

evidence that Petitioner instructed Mr. Dyer to file an appeal on his behalf. Mr. Dyer’s

testimony that he never told Mr. Elder that he would file an appeal was viewed by the trial

court as confirmation of Petitioner’s failure to direct Mr. Dyer to file an appeal. According

to the trial court, the “record demonstrates that, during the time that Mr. Dyer was the

Petitioner’s counsel, he took the necessary actions that a reasonable criminal defense attorney

would take in a similar situation.” Based on this finding, the trial court opined that Mr. Elder

had failed to meet the requisite first prong of Miller: a showing of deficient representation

under an objective standard of reasonableness. See 194 W.Va. at 6, 459 S.E.2d at 117, syl.

pt. 5. Given that Petitioner received what can only be viewed as a lenient sentence in view

of his admission to committing undisputedly offensive criminal conduct,20 we seriously doubt

that a meritorious appeal could have been taken from the trial court’s sentencing decision.

See id.


          19
         In further explanation, Mr. Dyer opined that Mr. Elder “had pled guilty to a fabulous
deal, [and] received a sentence that shocked everybody involved in the case in this courtroom
[as it] was much more lenient than anybody anticipated.”
          20
         The trial court commented during the omnibus hearing that its decision to impose
alternative sentencing was impelled by Mr. Elder’s serious health condition and his prior
military service to this country.

                                              14

              Concerning the alleged failure to timely file a motion for reconsideration of

sentencing, the trial court determined that the actual filing Mr. Dyer had been directed to

prepare on Petitioner’s behalf was not a motion to reconsider sentencing but a motion to

modify the terms of his home incarceration.21 As the record confirms, Mr. Dyer filed a

motion to modify the terms of Petitioner’s home incarceration on June 23, 2009. By order

entered on August 19, 2009, the trial court denied this motion, stating that the motion lacked

supporting medical information necessary to substantiate a legitimate basis for the requested

modification.22



              Upon its review of the record, the trial court concluded that Petitioner had not

introduced any evidence in support of his claim that Mr. Dyer was instructed to file a motion

for reconsideration of sentence on his behalf. Returning to the first prong of Miller, the trial

court ruled that Petitioner had failed to demonstrate that Mr. Dyer’s actions fell short of what

a reasonable criminal defense attorney would have done in a similar situation. Having

carefully and fully reviewed the record in this matter, we find no basis for disagreeing with




       21
         While the trial court refers to the terms of home confinement in its ruling, we employ
the proper terminology–home incarceration–for the purpose of educating both the bar and
the judiciary as to the retitling of the subject legislation. See supra note 1.
       22
         As the trial court explained, Mr. Elder’s medical condition had been specifically
considered in making the decision to place Petitioner on home incarceration. To the extent
Petitioner was seeking a reconsideration of sentence, the trial court ruled that such a motion
was untimely as the 120-day appeal period had expired on June 13, 2009.

                                              15

the trial court’s decision that both of Petitioner’s ineffective assistance of counsel claims do

not survive scrutiny under Miller. See 194 W.Va. at 6, 459 S.E.2d at 117, syl. pt. 5.



                                     C. Religious Freedom

                 In an arguable attempt to create a constitutional claim for purposes of seeking

habeas relief,23 Petitioner asserts that he is being denied the right to exercise his religious

freedom.24 See W.Va. Const. art. III, § 15. As related above, the trial court fully considered

Mr. Elder’s request to attend thrice weekly church services at the Weston Church of God.25

In light of the fact that Petitioner was not attending any church services before he was placed

on home incarceration combined with the correlative need to protect any children in

attendance at those services from a convicted pedophile,26 the trial court denied Mr. Elder’s

request to attend religious services at the Weston Church of God.



                 Rather than looking to our state or federal constitutions as the source of the

alleged infringement of his religious freedoms, Petitioner relies instead upon a provision of


       23
            See supra note 13.
       24
            This claim was raised on the second day of the omnibus hearing. See supra note 7.
       25
         Through the testimony of Pastor Randall Lane Hughes, it was established that
Petitioner was seeking to attend services, which last for approximately two hours, on Sunday
mornings, Sunday evenings, and Wednesday evenings.
       26
        Pastor Hughes testified that minor children would be on the church van/bus that Mr.
Elder would be using when a congregant/neighbor was unable to drive him to church.

                                                16

the Home Incarceration Act. Specifically, Mr. Elder cites to the statutory provision in which

the Legislature has broadly addressed the contents of the order required to place an offender

on home incarceration. See W.Va. Code § 62-11B-5. As part of the delineated but expressly

non-inclusive list of matters to be addressed in a home incarceration order,27 the Legislature

included the foundational requirement that an offender be confined to his or her home at all

times subject to certain delineated exceptions. One of the statutorily-recognized exceptions

to continuous confinement is “[a]ttending a regularly scheduled religious service at a place

of worship.” W.Va. Code § 62-11B-5(1)(E).28 Because worship service attendance is

expressly identified within the legislatively-approved exceptions to confinement within the

offender’s home, Mr. Elder argues that he was wrongly denied the right to attend services

at his desired place of worship.



              Looking to the introductory language of West Virginia Code § 62-11B-5 which

provides the elements that a home incarceration order “is to include,” Mr. Elder argues that




       27
        The Legislature made clear that additional matters could be included in the home
incarceration order. See W.Va. Code § 62-11B-5(1) (providing that “order for home
incarceration . . . is to include but not be limited to, the following”).
       28
        The other exceptions specifically contemplated by the Legislature include matters
of employment; medical, mental health and counseling; education; community service or
work release; and a catchall category of non-specified but specifically-approved activities.
See W.Va. Code § 62-11B-5(1)(A)-(G).

                                             17

he has a statutorily-mandated right to attend religious services.29 In making this argument,

Petitioner misreads the legislative use of the introductory language and further fails to

consider that the exceptions to the requirement that an offender be continuously within the

confines of his or her home are clearly subject to court approval.



               In specifying nine items that are required to be included in each and every

home incarceration order,30 the Legislature provided the critical elements to be contained in

such orders. The first of these requisites concerns the core directive that an offender must

be confined to his or her home at all times unless a designated exception is applicable. See

W.Va. Code § 62-11B-5(1)(A)-(G). Because church attendance is a recognized exception

to the ongoing requirement of confinement, Petitioner contends that every home incarceration

order must necessarily permit an offender to attend religious services. We find this argument

unavailing for several reasons.




       29
          With amendments enacted in 2001, the statutory language that formerly directed
what a home incarceration order “shall include” is now phrased in terms of providing what
the order “is to include.” Cf. W.Va. Code §§ 62-11B-5 (1994) to 62-11B-5 (2001); see State
v. McGuire, 207 W.Va. 459, 462 n.2, 533 S.E.2d 685, 688 n.2 (2000) (referring to
requirements of W.Va. Code § 62-11B-5 (1997) as “mandatory”). While the statutory
amendment is worth noting, our decision does not turn on whether or not the introductory
language is framed in mandatory language.
       30
        There are actually eight specific requirements as the ninth item recognizes a general
requirement that “the offender abide by other conditions set by the circuit court or by the
magistrate.” W.Va. Code § 62-11B-5(9).

                                             18

              In suggesting that the Legislature has mandated that every home incarceration

order must authorize participation in the areas covered by the exceptions to confinement,

Petitioner overlooks an implied need to determine whether those exceptions apply to the

particular offender. See id. For instance, because Mr. Elder is retired there would be no need

to expressly provide as a term and condition of his home incarceration that he may leave his

home for employment or employment seeking purposes. Similarly, it stands to reason that

someone like Petitioner who is not attending church at the time of his sentencing is unlikely

to require an approved allotment of time to attend worship services as part of his home

incarceration order.31 Just because the Legislature anticipated the need to permit an offender

to leave his or her home for certain limited purposes during the course of home incarceration,

this does not mean that the Legislature sanctioned the automatic right of every offender to

participate in each of the excepted activities. See W.Va. Code § 62-11B-5(1)(A)-(G). Only

when those specified and excepted activities are authorized by the terms and conditions of

the home incarceration order or after the trial court has indicated its approval of such activity

does an offender have permission to leave his or her home to engage in an activity covered

by the exceptions to West Virginia Code § 62-11B-5(1).




       31
          We are not indicating that an offender who is not initially permitted to attend
worship services under the terms of his or her home incarceration order could never obtain
the trial court’s approval to attend such services. This is a matter subject to the trial court’s
discretion and controlled by the facts of a given case.

                                               19

              When the issue of attending worship services at the Weston Church of God was

raised below, the trial court carefully considered Petitioner’s right to exercise his religious

freedom against the state’s parens patriae duty to protect the children who would either be

on the church bus or van or inside the sanctuary during worship services. Upon a balancing

of Petitioner’s request to attend religious services against the specific factors present in this

case, the trial court correctly recognized the paramount need to protect the children from the

possibility of harm. The trial court also considered the fact that both Pastor Hughes and other

church members had been regularly visiting Petitioner and apparently engaging in Bible

study with him in his home. Because Mr. Elder was free to continue to meet and have

fellowship with the Weston Church of God members in his home, the trial court concluded

that his right to exercise his religion freedom was not being violated.32 We agree.



                  Upon our review of the provisions of the Home Incarceration Act, we are

convinced that the trial court properly considered Petitioner’s request to attend worship

services and applied the appropriate factors in reaching its decision. As discussed above, an

offender does not have an automatic right to attend religious services. That statutorily-

recognized exception, like the other exceptions set forth in West Virginia Code § 62-11B­



       32
        During the oral argument of this case, there was a lengthy discussion of how an
individual can exercise his or her freedom of religion within the confines of his or her home.
Examples discussed included listening to worship services aired on the radio and viewing any
of the many church services that are regularly aired on television.

                                               20

5(1)(A)-(G), is subject to the trial court’s discretion. Having carefully reviewed the record

in this case, we find no basis for concluding that the trial court erred in denying Petitioner’s

request to attend worship services at a specified church in view of the competing concerns

necessarily injected into the decision by virtue of Petitioner’s status as a sexual offender. Mr.

Elder is free to exercise his religious freedom in other ways.



                                       IV. Conclusion

              Based on the foregoing, we do not find that the trial court committed error in

denying Petitioner’s request for a writ of habeas corpus.33 Accordingly, the decision of the

Circuit Court of Harrison County is affirmed.

                                                                                      Affirmed.




       33
        With regard to Petitioner’s plea that he be immediately released from his home
incarceration and placed on probation due to his deteriorating health, we observe that this
concern is not the proper subject of a habeas complaint. See supra note 13.

                                               21
