Davis, J., dissenting:
Mr. Scott argues that all
of his presentence credit for time served should have been apportioned between
the two consecutive sentences imposed by the circuit court.
(See footnote 1) He further asserts that the
time served credit should be deducted from the minimum terms of incarceration.
The majority has agreed with Mr. Scott and, by way of footnote 11 of the opinion,
has suggested that the circuit court “allocate 365 days toward the first
uttering count, and the remaining 202 days toward the transporting count.”
For the reasons outlined below, I dissent from the majority's disposition
of this issue.
The disposition of this
case was controlled by the prior decision of this Court in Echard v. Holland,
177 W. Va. 138, 351 S.E.2d 51 (1986). In Echard, the defendant
was sentenced in Ritchie County to a term of five to eighteen years. He was
also sentenced in Wood County to a term of five to twenty-three years. The
Wood County sentence was ordered to run consecutively with the Ritchie County
sentence. The defendant eventually filed a habeas corpus petition in circuit
court challenging how good time credit
(See footnote 2) was awarded him while in
prison. The defendant alleged that his minimum discharge date had been incorrectly
calculated because good time credit was improperly being distributed between
his consecutive sentences. The circuit court disagreed and dismissed the petition.
The defendant appealed.
While the particular issue
in Echard involved how good time credit was awarded, to resolve the
issue of defendant's minimum discharge date, the Echard Court had to
first determine the amount of credit earned by the defendant for time served
prior to imposition of his two sentences.
(See footnote 3) After determining the amount
of credit for time served by the defendant prior to imposition of his two
sentences, as well as the total amount of possible good time, the Court established
the following formula for determining how credit was to be distributed when
consecutive sentences are imposed:
The
maximum terms of the consecutive sentences, determinate or indeterminate,
must first be added together to determine the inmate's maximum discharge date.
It is from this maximum discharge date that all presentence and good
time deductions must be made in order to establish the inmate's minimum
discharge date.
(See footnote 4)
Echard, 177 W. Va. at 143, 351 S.E.2d at 56-57 (emphasis added).
(See footnote 5)
Under the decision in Echard,
in cases involving consecutive sentences, credit for time served prior to
sentencing is to be applied to and deducted from the aggregate of the maximum
terms of the sentences. The ruling in Echard is consistent with the
general rule throughout the country. See Endell v. Johnson,
738 P.2d 769, 771 (Alaska Ct. App. 1987) (“[C]ourts of other jurisdictions
. . . have uniformly held that, when consecutive sentences are imposed for
two or more offenses, periods of presentence incarceration may be credited
only against the aggregate of all terms imposed.”); State v. Tauiliili,
29 P.3d 914, 918 (Haw. 2001) (“[W]hen consecutive sentences are imposed,
credit for presentence imprisonment is properly granted against only the aggregate
of the consecutive sentence terms.”); Stephens v. State, 735 N.E.2d
278, 284 (Ind. Ct. App. 2000) (“It is well-settled that where a person
incarcerated awaiting trial on more than one charge is sentenced to concurrent
terms for the separate crimes, [the law] entitles him to receive credit time
applied against each separate term. However, where he receives consecutive
terms he is only allowed credit time against the total or aggregate of the
terms.”); State v. Anderson, 520 N.W.2d 184, 187 (Minn. Ct. App.
1994) (“When applying credit to consecutive sentences, however, credit
is applied only to the first sentence, since to do otherwise would constitute
'double credit' and defeat the purpose of consecutive sentencing.”);
Syl. pt. 2, State v. Sanchez, 520 N.W.2d 33 (Neb. Ct. App. 1994) (“Credit
for presentence incarceration is properly granted only against the aggregate
of all terms imposed.”).
(See footnote 6)
Unfortunately,
the majority opinion has attempted to overrule Echard without acknowledging
that fact. The majority opinion, at first blush, appears to apply only to
defendants who are initially placed at a youthful offender center. A closer
look reveals that the opinion is not limited to that situation. This is true
because, under Syllabus point 6 of the majority opinion, a defendant placed
at such a center must be awarded time served “as if the defendant had
not been committed to a young adult offender center.” In other words,
such a defendant must be granted time served in the same manner as any other
defendant with presentence time served.
However, the syllabus point fails to explain exactly how credit for time served
should be awarded. This is where the Court's prior decision in Echard
should have been applied. Instead, however, the majority opinion chose to
elaborate on the application of its syllabus point in footnote 11.
(See footnote 7)
This was improper for two reasons. First, footnote 11 does not follow
the rule announced in Echard, and is, therefore, simply wrong. Second,
by providing instruction to the bar that is contrary to the existing law in
this state, the majority has attempted to create new law in a footnote. A
footnote is not the proper place to announce new law. “'[N]ew points
of law . . . will be articulated through syllabus points
as required by our state constitution.' Syllabus Point 2, in part, Walker
v. Doe, 210 W. Va. 490, 558 S.E.2d 290 (2001).” Syl. pt. 13,
State ex rel. Medical Assurance of West Virginia v. Recht, No. 30840,
___ W. Va. ___, ___ S.E.2d ___ (April 30, 2003). Furthermore, we have
explained “language in a footnote generally should be considered obiter
dicta which, by definition, is language 'unnecessary to the decision in the
case and therefore not precedential.” Id., slip op. at 25, ___
W. Va. at ___. ___ S.E.2d at ___ (quoting Black's Law Dictionary 1100
(7th ed. 1999)).
The least of the problems
caused by the majority opinion will be appeals challenging
the manner in which circuit courts apportion presentence time served. The
greater problem will arise from defendants being released far too early from
prison because of the imposition of credit for time served on the minimum
terms of consecutive sentences. Because
the majority opinion improperly attempts to create new law in a footnote,
and because the legal principles explained in that footnote are contrary to
the established law of this state and inconsistent with the rule followed
by courts throughout the country, I respectfully dissent.
Footnote: 1