State of West Virginia v. Matthew E. Corrigan ( 2021 )

FILED
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS April 20, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 19-1048 (Cabell County 18-F-36)
Matthew Edward Corrigan,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Matthew Edward Corrigan, by counsel Timothy P. Rosinsky, appeals the
October 21, 2019, sentencing order of the Circuit Court of Cabell County imposing petitioner’s
original sentence of sixty years of incarceration following petitioner’s violation of the terms and
conditions of his home confinement as a part of an alternative sentence. Respondent State of West
Virginia, by counsel Gordon L. Mowen, II, filed a response in support of the circuit court’s order.
The 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 circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
On February 23, 2018, petitioner was indicted in the Circuit Court of Cabell County on one
count of first-degree robbery, one count of brandishing, and four counts of shoplifting, third
offense. Petitioner and the State reached a plea agreement pursuant to the Rule 11(e)(1)(C) of the
West Virginia Rules of Criminal Procedure that was binding upon the circuit court. 1 Petitioner
1
In Syllabus Point 2 of State ex rel. Forbes v. Kaufman, 185 W. Va. 72, 404 S.E.2d 763
(1991), we held:
1
agreed to enter a Kennedy plea to first-degree robbery in exchange for the State’s dismissal of the
other charges. 2 The parties further agreed that the appropriate disposition of the case was a sixty-
year sentence of incarceration suspended in favor of alternative sentencing in the form of ten years
of home confinement, five years of probation, and one year of parole in order for petitioner to
discharge his sentence.
During an October 23, 2018, plea hearing, petitioner confirmed his understanding that he
would be sentenced to sixty-years of incarceration should he violate the terms and conditions of
his home confinement:
[Petitioner’s counsel]: And you understand the consequences in the event that there
would be a violation of either the terms [and] conditions of home confinement or
the terms [and] conditions of supervised probation?
[Petitioner]: Yes, sir.
[Petitioner’s counsel]: And you understand that . . . if anything went sideways and
you came before the [c]ourt[,] . . . the [c]ourt had to reimpose the original
sentence, which is 60 years?
[Petitioner]: Yes, sir.
[Petitioner’s counsel]: With all that you knowingly and voluntarily agree to the
terms of this agreement?
[Petitioner]: Yes, sir.
(Emphasis added.). Thereafter, petitioner entered a Kennedy plea to first-degree robbery, which
the circuit court accepted. Pursuant to the plea agreement, the circuit court sentenced petitioner to
sixty years of incarceration and then suspended that sentence in favor of alternative sentencing in
the form of ten years of home confinement, five years of probation, and one year of parole.
Where the state agrees that a specific sentence is a suitable disposition of a
criminal case and enters into a plea agreement with the defendant pursuant to Rule
11(e)(1)(C) of the West Virginia Rules of Criminal Procedure, the trial court may
either accept or reject the entire agreement, but it may not accept the guilty plea
and impose a different sentence.
2
Relying on North Carolina v. Alford, 400 U.S. 25 (1970), this Court held in Syllabus Point
1 of Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987), that “[a]n accused may voluntarily,
knowingly and understandingly consent to the imposition of a prison sentence even though he is
unwilling to admit participation in the crime, if he intelligently concludes that his interests require
a guilty plea and the record supports the conclusion that a jury could convict him.”
2
Petitioner began his home confinement on October 23, 2018, and signed the terms and
conditions thereof on October 28, 2018. Relevant here, petitioner was required to (1) “abide by a
schedule prepared and set by the alternative sentencing officer designating the times when
[petitioner] may be absent from the approved residence of home incarceration, 3 and/or the
locations [petitioner] is permitted to visit during the scheduled absence”; (2) “submit to random .
. . drug . . . testing at the discretion of the alternative sentencing officer”; and (3) refrain from
purchasing, possessing, using, or having in the approved residence “any drug(s) or substance(s)
listed in the Uniform Controlled Substances Act[.]” 4 On September 3, 2019, the State filed a
petition to revoke petitioner’s home confinement. According to petitioner, he admitted testing
positive for opiates, fentanyl, and cocaine on August 26, 2019, using heroin on August 23, 2019,
and committing numerous other violations of the terms and conditions of his home confinement
involving petitioner’s absence from the “place and time . . . reported on his daily home confinement
schedule.”
Before the circuit court, the parties disputed the appropriate disposition of the revocation
of petitioner’s home confinement due to the numerous violations of the terms and conditions
thereof. Given the terms of the plea agreement, and the fact that petitioner was on home
confinement as a part of his alternative sentence, the State argued that the circuit court should
impose the original sentence of sixty years of incarceration. Petitioner countered that the Home
Incarceration Act, West Virginia Code §§ 62-11B-1 through 62-11B-13 (“the Act”), did not
authorize the circuit court to treat a defendant such as petitioner, who was on home confinement
as a part of an alternative sentence, differently than a defendant who violated the terms and
conditions of home confinement as a part of probation. Accordingly, because West Virginia Code
§ 62-11B-9(a) refers to West Virginia Code § 62-12-10, petitioner argued that the circuit court
should impose a sixty-day “shock” sentence of incarceration pursuant to West Virginia Code § 62-
12-10(a)(2). Following an October 15, 2019, hearing, the circuit court ruled in the State’s favor,
finding that petitioner had “a significant opportunity” that “he negotiated for and received,” in the
form of a binding plea agreement, but that he violated the terms and conditions of his home
confinement. Therefore, by order entered on October 21, 2019, the circuit court revoked
petitioner’s home confinement and imposed his original sentence of sixty years of incarceration
for first-degree robbery. 5
Petitioner now appeals the circuit court’s October 21, 2019, sentencing order. This Court
3
Consistent with the parties’ practice, we will continue to use the term “home confinement”
rather than “home incarceration.” See Elder v. Scolapia, 230 W. Va. 422, 424 n.1, 738 S.E.2d 924,
926 n.1 (2013) (noting that, in 1994, the Home Confinement Act, West Virginia Code §§ 62-11B-
1 through 62-11B-13, was renamed the Home Incarceration Act).
4
The Uniform Controlled Substances Act is set forth at West Virginia Code §§ 60A-1-101
through 60A-6-505.
5
By subsequent order entered on December 9, 2019, the circuit court granted petitioner’s
motion to receive credit for time served while on home confinement.
3
“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). We have further held that “[s]entences imposed by the trial court, if within
statutory limits and if not based on some [im]permissible factor, are not subject to appellate
review.” Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).
On appeal, petitioner argues that the Act did not authorize the circuit court to treat a
defendant such as petitioner, who was on home confinement as a part of an alternative sentence,
differently than a defendant who violated the terms and conditions of home confinement as a part
of probation. The State counters that the circuit court did not abuse its discretion in imposing the
original sentence of sixty years of incarceration for first-degree robbery following petitioner’s
violation of the terms and conditions of his home confinement. We agree with the State.
As we recently stated in State v. Walker, ___ W. Va. ___, 851 S.E.2d 507 (2020), the Act
“provides three possible bases under which a court may order participation in a home incarceration
program: (1) as a condition of probation; (2) as a condition of bail; or (3) as an alternative sentence
to another form of incarceration.” Id. at 509 (citing W. Va. Code § 62-11B-4(a)). Here, it is
undisputed that petitioner was on home confinement as a part of an alternative sentence to another
form of incarceration.
West Virginia Code § 62-11B-9 sets forth the procedures that a circuit court must follow
when a defendant violates the terms and conditions of home confinement:
(a) If, at any time during the period of home incarceration, there is reasonable cause
to believe that a participant in a home incarceration program has violated the terms
and conditions of the circuit court’s home incarceration order, he or she is subject
to the procedures and penalties set forth in [West Virginia Code § 62-12-10].
(b) If, at any time during the period of home incarceration, there is reasonable cause
to believe that a participant sentenced to home incarceration by the circuit court has
violated the terms and conditions of the circuit court’s order of home incarceration
and the participant’s participation was imposed as an alternative sentence to
another form of incarceration, the participant is subject to the same procedures
involving confinement and revocation as would a probationer charged with a
violation of the order of home incarceration. Any participant under an order of
home incarceration is subject to the same penalty or penalties, upon the circuit
court’s finding a violation of the order of home incarceration, as he or she could
have received at the initial disposition hearing: Provided, That the participant shall
receive credit towards any sentence imposed after finding a violation for the time
spent in home incarceration.
W. Va. Code §§ 62-11B-9(a) and (b) (Emphasis added.). In Walker, we found that West Virginia
Code § 62-11B-9(a) “applies broadly to all forms of home incarceration, while . . . [West Virginia
Code § 62-11B-9(b)] is limited by its first sentence to only apply where home incarceration was
imposed as an alternative sentence.” 851 S.E.2d at 511. Therefore, contrary to petitioner’s
4
argument, we find that the Act differentiates between those situations where a defendant such as
petitioner was on home confinement as a part of an alternative sentence to another form of
incarceration and situations in which home confinement was imposed upon a different basis.
Here, West Virginia Code § 62-11B-9(b) required the circuit court to give petitioner credit
for time served while on home confinement, see Walker, 851 S.E. at 507, syl. pt. 3; the court gave
the appropriate credit pursuant to the statute. 6 However, West Virginia Code § 62-11B-9(b) also
permitted the circuit court to impose the original sentence of sixty-years of incarceration for first-
degree robbery because West Virginia Code § 62-11B-9(b) provides, in pertinent part, that “[a]ny
participant under an order of home incarceration is subject to the same penalty or penalties, upon
the circuit court’s finding a violation of the order of home incarceration, as he or she could have
received at the initial disposition hearing[.]” As we have long found, West Virginia Code § 62-
11B-9(b) reflects that the Act is penal in nature and that “[a] violation of [the terms and conditions
of home confinement] results in the offender being subject to incarceration under the penalties
prescribed for the crime.” State v. Hughes, 197 W. Va. 518, 527, 476 S.E.2d 189, 198 (1996)
(quoting State v. Long, 192 W. Va. 109, 111, 450 S.E.2d 806, 808 (1994)). Pursuant to West
Virginia Code § 61-2-12(a), a person convicted of first-degree robbery is subject to a term of
incarceration of not less ten years. Furthermore, petitioner confirmed at the October 23, 2018, plea
hearing, that he understood that, if he violated the terms and conditions of confinement, the plea
agreement provided that his original sentence for first-degree robbery would be imposed.
Accordingly, we conclude that the circuit court did not abuse its discretion in imposing the original
sentence of sixty years of incarceration following petitioner’s violation of the terms and conditions
of his home confinement.
For the foregoing reasons, we affirm the circuit court’s October 21, 2019, sentencing order.
Affirmed.
ISSUED: April 20, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
6
See fn.5.
5