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Date: 07-02-2021
Case Style:
State of West Virginia vs. Joshua C. Newill
Case Number: 20-0471
Judge: CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Court: STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Plaintiff's Attorney: State of West Virginia, by counsel Katherine M. Smith
Defendant's Attorney:
Description:
Charleston, WV - Criminal defense attorney represented Joshua C. Newill with a voluntary manslaughter charge.
Petitioner Joshua C. Newill, by counsel Shawn R. McDermott, appeals the Circuit Court
of Berkeley County’s June 4, 2020, sentencing order, sentencing petitioner to a determinate term
of six years following his plea of guilty under Alford circumstances to voluntary manslaughter.
Respondent the State of West Virginia, by counsel Katherine M. Smith, filed a response in support
of the circuit court’s order. Petitioner filed a reply.
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.
Petitioner was arrested on October 11, 2017, on the charge of first-degree murder related
to a shooting that occurred on October 6, 2017. On May 17, 2018, a Berkeley County grand jury
returned an indictment against petitioner charging him with second-degree murder. Petitioner was
released on bail, subject to the condition that he be placed on home confinement. In its May 21,
2018, agreed bail order, the circuit court indicated that the conditions of petitioner’s bail were “to
ensure [petitioner’s] appearance at all required court hearings and to protect the community.” On
May 22, 2018, petitioner signed an “Agreement to [C]omply with Home Confinement Rules of
Supervision.”
Petitioner reached multiple plea agreements with the State that were presented to the circuit
court. On December 20, 2018, petitioner reached his initial plea agreement with the State and his
first plea hearing was conducted on January 17, 2019. During the initial plea hearing, the circuit
court engaged in a plea colloquy with petitioner to ensure that the plea was knowing and voluntary.
FILED
June 23, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA2
The circuit court did not adjudge petitioner guilty, but instead held the plea in abeyance,
explaining:
And I am – just because of the stage of the proceedings we’re at, what I was going
to do is conditionally accept it. In other words, I think you have the basics there. I
have to make some determination based upon the Presentence Investigation Report,
and also I would like to hear from the victim’s family before I settle finally on
whether it serves the public interest to accept it or not.
On April 1, 2019, petitioner appeared before the circuit court for an adjudication and
sentencing hearing and the court rejected the first plea agreement. On April 25, 2019, petitioner
entered into his second plea agreement, which the court rejected on May 13, 2019. Thereafter, on
October 28, 2019, petitioner entered into his third plea agreement on the charge. Petitioner’s third
plea agreement was an Alford plea to voluntary manslaughter, a lesser included offense of seconddegree murder as charged in the indictment. Pursuant to the terms of the third plea agreement, the
parties agreed that they would “be free to argue for any lawful sentence, however, the State . . .
agree[d] to a cap of six years”; this plea agreement did not provide for any credit for petitioner’s
time spent on home confinement. Ultimately, on October 28, 2019, the circuit court accepted
petitioner’s third plea agreement.
On June 4, 2020, petitioner was sentenced to “a determinate sentence of six years in the
custody of the Division of Corrections.” The circuit court granted petitioner credit for his time
served in the Eastern Regional Jail prior to his conviction (totaling 212 days), as well as time spent
on post-conviction home confinement (221 days from petitioner’s third guilty plea on October 28,
2019, through his sentencing on June 4, 2020). Thus, petitioner’s effective sentence date was
March 30, 2019.
Petitioner filed this appeal raising two assignments of error. First, petitioner claims that he
was constitutionally entitled to credit against his prison sentence for the time spent in pretrial
custody on home confinement, arguing that the pretrial home confinement was the functional
equivalent of incarceration. Also, he claims that he was entitled to credit against his prison sentence
for time spent on home confinement subsequent to his guilty plea but prior to the court rejecting
the guilty plea.
“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,
in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997).
Petitioner claims that he is constitutionally entitled to credit against his prison sentence for
time he spent on home confinement as a condition of his pretrial, as opposed to post-conviction,
bail because his home confinement “was the functional equivalent of actual incarceration and
contained all of the minimum conditions under the [Home Incarceration Act] for post-conviction
home confinement.” Respondent maintains that petitioner is not constitutionally entitled to credit
against his sentence for time spent on home confinement as a condition of pretrial bail because the
Home Incarceration Act (“Act”), as codified at West Virginia Code §§ 62-11B-1 to - 13, does not
apply. Per respondent, the Act applies only to “offenders,” which it defines as “any adult convicted 3
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). Therefore, as set forth by respondent, the Act applies only in post-conviction situations.
We agree with respondent.
This Court has never characterized home confinement as a condition of pretrial bail as a
form of incarceration akin to time spent in jail. In fact, this Court has repeatedly held
“When a person who has been arrested, but not yet convicted of a crime, is
admitted to pre-trial bail with the condition that he be restricted to home
confinement pursuant to West Virginia Code § 62–1C–2(c) (1992), the home
confinement restriction is not considered the same as actual confinement in a jail,
nor is it considered the same as home confinement under the Home Confinement
Act, West Virginia Code §§ 62–11B–1 to –12 (1993). Therefore, the time spent in
home confinement when it is a condition of bail under West Virginia Code § 62–
1C–2(c) does not count as credit toward a sentence subsequently imposed.”
Syllabus Point 4, State v. Hughes, 197 W. Va. 518, 476 S.E.2d 189 (1996).
Syl. Pt. 2, State v. Jedediah C., 240 W. Va. 534, 814 S.E.2d 197 (2018).
Since petitioner’s pretrial home confinement was not penal in nature, but was in place to
ensure his appearance at all court hearings and to protect the community, he is not entitled to credit
for that time.
Although petitioner claims that his constitutional rights were violated because he was not
given credit for his pretrial home confinement period, these claims are unavailing. First,
petitioner’s right to be free from double jeopardy was not violated. “The constitutional prohibition
of double jeopardy consists of three separate guarantees: (1) it protects against a second
prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the
same offense after conviction; (3) and it protects against multiple punishments for the same
offense.” State ex rel. Day v. Silver, 210 W. Va. 175, 178, 556 S.E.2d 820, 823 (2001) (citation
omitted). Although petitioner’s arguments relate to the third guarantee, he does not cite to any
authority that holds, or even suggests, that home confinement as a condition of pretrial bail is
considered punishment for the purpose of double jeopardy analysis. Moreover, this Court has held
that “the purpose of pretrial bail is not to punish, but rather it acts as ‘security for the appearance
of a defendant to answer to a specific criminal charge before any court or magistrate at a specific
time or at any time to which the case may be continued.’” Hughes, 197 W. Va. at 527-28, 476
S.E.2d at 198-99. Here, since the condition of pretrial confinement – to secure petitioner’s
appearance at future hearings and to protect the public – was not ordered pursuant to any
conviction, it cannot be said that it was ordered to “punish” petitioner.1
1 Additionally, we are not persuaded by petitioner’s argument that his sentence was
impermissibly increased beyond the mandatory minimum sentence for voluntary manslaughter in
(Continued . . . )4
Although petitioner argues that the equal protection clause is implicated in this matter
because home incarceration is treated differently depending on whether the home incarceration is
imposed pretrial or post-trial, this is also not persuasive. The equal protection clause is implicated
when similarly situated persons are treated differently and petitioner ignores a critical fact: preand post-trial defendants are not similarly situated, and, thus, and are not afforded the same
protections. Although an equal protection issue may arise “when two people receive a sentence for
the same term of incarceration but one of those people actually serves a longer period of time in
jail simply because he or she is financially unable to post the bail required to secure pretrial
release.” State v. McClain, 211 W. Va. 61, 67, 561 S.E.2d 783, 789 (2002) (emphasis added). That
situation, causing an inequity as a result of economic disparity, did not occur here because
petitioner’s financial circumstances did not play any in the terms of his pretrial bail. Therefore, the
equal protection clause has no application here.
Petitioner’s due process claim is inadequately briefed and does not conform to the
requirements of Rule 10(c)(7) of the Rules of Appellate Procedure. Petitioner simply claims that
his right to due process was “violated,” but fails to articulate how the circuit court’s refusal to
credit his sentence with the time he spent on pretrial home confinement was in violation of his
right to due process. Rule10(c)(7) of the West Virginia Rules of Appellate Procedure requires that
[t]he brief must contain an argument exhibiting clearly the points of fact and law
presented, the standard of review applicable, and citing the authorities relied on . .
. The argument must contain appropriate and specific citations to the record on
appeal, including citations that pinpoint when and how the issues in the
assignments of error were presented to the lower tribunal. The Court may disregard
errors that are not adequately supported by specific references to the record on
appeal.
(Emphasis added). Additionally, in an Administrative Order entered December 10, 2012, Re:
Filings That Do Not Comply With the Rules of Appellate Procedure, the Court noted that “[b]riefs
that lack citation of authority [or] fail to structure an argument applying applicable law” are not in
compliance with this Court’s rules. Further, “[b]riefs with arguments that do not contain a citation
to legal authority to support the argument presented and do not ‘contain appropriate and specific
citations to the . . . record on appeal . . .’ as required by rule 10(c)(7)” are not in compliance with
this Court’s rules. Here, petitioner’s brief is inadequate as it fails to comply with
the administrative order and the West Virginia Rules of Appellate Procedure, and thus, we decline
to address this assignment of error on appeal.
Further, petitioner’s argument that a term of the plea agreement was violated is also
unavailing. Per his plea agreement, petitioner agreed to a term of six years in the penitentiary,
violation of the Sixth Amendment of the United States Constitution, where he was not given credit
for the year and a half that he served while on home incarceration. As we discussed above,
inasmuch as this Court has never characterized home confinement as a condition of pretrial bail as
a form of incarceration akin to time spent in prison or jail, we refuse to do so now. See Jedediah
C.5
which is the sentence he received. Petitioner’s argument on this point is the same as earlier – his
“pre-trial home incarceration was qualitatively penal and the functional equivalent of
incarceration.” As addressed above, petitioner’s pretrial bail was not punitive in nature and cannot
be considered as another form of incarceration for the purpose of calculating credit for time served.
Thus, we refuse to disturb his sentence.
Finally, petitioner claims that he is entitled to credit for the time he spent on home
confinement between the time that he tendered his first guilty plea until the court ultimately
accepted his plea. As noted above, since petitioner was not an “offender” as defined under the Act
during that time period, he is not entitled to credit for his time spent on home confinement between
those dates. Moreover, even if the Act were applicable to this case, the granting of credit for time
spent on home confinement as a condition of bail is not mandatory, but instead is within the sound
discretion of the court. Therefore, petitioner’s second assignment of error is without merit.
Outcome: For the foregoing reasons, we affirm.
Plaintiff's Experts:
Defendant's Experts:
Comments: