Law says extended supervision for sex offenses; court says also applies to attempt.

Inspired by this decision:

The short version is that the Legislature says that a court is to impose a period of supervision for those convicted of certain enumerated sex crimes. This defendant was convicted of an attempt to commit one of the enumerated crimes but was given a period of supervised release anyways.

The court upheld the sentence, basically saying that it was close enough and because he tried, he needs supervision.

I think it is an outrageous usurpation of the Legislature’s power to define crimes and punishments and is pretty clearly a violation of due process and ex post facto, and the Court ruled this way in a throwaway memorandum opinion with no analysis and a unanimous fashion.

Can anyone justify this?

I don’t usually have to drink from the source and get my case law after it’s been translated into English. Doesn’t this basically say that the question has been answered in a previous case (State v John F.) and that’s why they aren’t giving an additional ruling? You have to look at John F and argue for or against that case.

Your link has the reasoning. The court upheld the sentence because he was plead guilty to attempting one of the specified crimes, and the fact that he was foiled before he could fully molest the girl doesn’t mitigate that he was engaged in exactly the dangerous behavior the legislature was attempting to add additional punishment for. The “Attempted felony” he was convicted of isn’t a separate crime, it exists only in relation to other offenses and the ‘other offense’ in this case was one of the ones that require supervised release. The logic is pretty simple.

Getting a trial and appeal is not a violation of due process, and the law was passed before he committed the crime so it’s obviously not ex post facto. Complaining that a decision is less valid because the appeals court ruled unanimously is… unusual to say the least. I fail to see how this usurps the legislatures power to define crimes, as they’re using a crime defined by the legislature, and if the legislature wanted to explicitly not apply supervised probation to attempted sex crimes they could add that language and this decision would not override that.

The statute is plain:

Emphasis added. The defendant was not convicted of any of these enumerated offenses, so no supervision should be imposed. Case over. He was convicted (plead guilty) of this one:

As 61-11-8 is not one of the enumerated offenses for which supervised release may be imposed, that is the end of it. The statute is unambiguous and according to books and books of case law, it needs no discernment of legislative intent.

It is violative of due process as a person who pleads guilty to 61-11-8 is not placed on notice that his punishment may include supervised release. As an attorney, prior to this case, if a client asked me if pleading guilty to 61-11-8 could subject him to supervised release, I would say without hesitation that of course it cannot based upon the plain reading of the statute.

That’s not to say that the Court’s logic is incorrect that people convicted of attempts to commit these crimes are dangerous and are in need of supervision, but that is not what the law says right now. The Court is not the Legislature.

State v. James F. was also a memorandum decision which according to the Court has “limited” precedential value. The facts were also different.

The short version was in that case, the defendant plead guilty to attempt, but the crime he plead guilty to was an imposition of sexual abuse upon a child in his care, custody, and control which itself said one was guilty of if he/she attempted to impose it.

The plea deal in that case was sort of a devil’s bargain in which the parties resorted to a legal fiction of letting him plead to the general attempt statute to do less time in prison, but still be subject to supervised release.

The defendant benefitted from this bargain but later challenged his supervised release, even though he accepted it as part of his plea deal. Courts really frown on that. I accepted that decision as a legally incorrect decision but one that disposed of the issue summarily to not allow the defendant to get the best of both worlds.

I was wrong.

I do see your logic. If they wanted criminal attempt to be included it should have been in the law. In my state attempt is an explicit part of the Megan’s Law statute.

Sorry, for the triple post, but I wanted to address some of your other points.

It is ex post facto because under the guise of interpretation, it has created an additional punishment after the fact. If the Legislature wanted to impose supervised release for attempts to commit the enumerated offenses, it could very easily added “convicted of X, Y, or Z, or convicted of an attempt to commit X, Y, or Z.” easy peasy.

I don’t understand the logic in saying that when a law says punishment X for only these Y offenses, that additional language is needed to say that it does not apply to Z offenses. It clearly does not apply. Does the Legislature have to specify every other crime in the West Virginia Code and say that it does not apply? Expressio Unius Est Exclusio Alterius.

The complaint about unanimity is the nature of the appeals process in West Virginia. In an attempt to thwart the creation of an intermediate court of appeals, the Supreme Court several years ago agreed to hear every appeal as a matter of right. It now issues “memorandum” decisions which supposedly address issues of settled law.

Further, due to the impeachment process, three of the five justices have been on the Court less than two months.

In the last month, the Court has issued 89 memorandum decisions, all unanimous. All of which where the state is a party, side with the state. Each case has a Petitioner’s brief, a response, and a reply brief. There is no way that these new Justices sat down and read 270 briefs in the last month, including two of mine, and gave them careful consideration. The law clerks are writing these opinions.

If you read the WV Supreme Court opinions from the 80s and 90s, they are mostly magnificent. Even when I disagree with them, we can throw them on the table, dissect them, and argue the points made according to sound legal principles. Not so with this stuff.

No. An ex post facto law is a law that is created after the crime is committed. The judges here are not claiming that they are creating an additional punishment, but that they are enforcing the punishment the legislature intended. There’s no way this can be ex post facto in a relevant manner; if you consider it creating a new law, then it’s invalid because that’s not within the power of the judicial system and ‘ex post facto’ is irrelevant. If it’s interpreting existing law, then long-running precedent is that interpretation of existing law is not creating new law, so a new interpretation doesn’t violate the ex post facto prohibition.

Except they are adding to the law something the legislature did not put in. There are specific enumerated offenses in the Megan’s Law statute. Criminal attempt is not one of them. There is no language stating “or attempts of the following statute.” I agree this is over stepping the bounds of the judiciary. They are adding an extra provision to the law that doesn’t exist in the current statute.

Aren’t you a lawyer? Shouldn’t you know this stuff?

How does disagreeing with a ruling mean he doesn’t “know this stuff?” You think everyone who knows the law agrees with every ruling?

This sounds like a classic instance of the correct outcome being forced from an inadequate law.

Does anyone wish to argue that supervising a man who has attempted to rape a child is actually inappropriate? This kind of legal quibbling gets tiresome. No, he is not entitled to a pass just because he managed to skirt the printed statute.

But the court is not allowed to force a “correct” outcome that the legislature did not plan for. It’s not quibbling it’s the basis of our system of government. Separation of powers and checks and balances. Don’t like the law? Get the legislature to change it. Don’t have the court shoehorn in an interpretation that goes beyond the scope of the statute.

My eyes are a bit glazed with the legalese, so…if I understand right, this is analogously like as if the law prescribes life imprisonment for murder, and someone *attempts *murder but doesn’t actually successfully kill his victim, and then the court says, “Well, you had every intention and effort to kill, so you’re really no different than an actual murderer” and pronounces life imprisonment on him?

Not quite. Basically they are saying “In the minds of the lawmakers they meant to include attempt.”

This is a Megan’s Law statute. It has to do with who is required to have supervised supervision under the law. The law specifically lists the statutes that require supervision. It does not list attempt. Just like in my state criminal attempt is listed as a separate statute. I have no problem with making those found guilty of attempting those sexual offenses be made to register. But that’s what the law should state and it doesn’t.

The judiciary has enormous power. A panel of a few appointed people can overturn laws made by a legislature of elected officials. They don’t have the power to make laws or change them. Or at least they shouldn’t rule that way.

I think the Court has taken the step that Velocity notes. Couldn’t it be said that murder is a dangerous crime and the Legislature has prescribed life in prison for that crime as a protection for society. A guy who shoots another guy six times but only through his good fortune does the other guy live should not be able to “skirt” the law by getting a lesser penalty. So it would be an absurd result for the Legislature to have meant that, so the Legislature indeed meant to permit life for attempted murder.

He’s not just disagreeing. He’s having to have another poster explain basic concepts to him, like what ex post facto means.

Judges can make law in a common law system, but the law they make is not ex post facto when applied to the case being appealed.

He also seemed to need other people to provide a justification, rather than just reading the ruling itself which provides its own justification. And he posted in MPSIMS, meaning he’s supposed to just be sharing something, not asking for the opinions of others.

No, that’s not correct. What they are asserting is that the language the legislature used shows intent for for ‘attempted offense’ to be included in the extra penalty, and that the judiciary is acting in accordance with the law passed. That’s not ex post facto, as the legislature acted before the crime. If you are arguing that they created an extra provision, then the problem is not that they created the provision at a time after the crime occurred (which would violate the prohibition on ex post facto laws) but that they don’t have the power to create an extra provision at all, at any time, regardless of whether they do it before or after the crime is committed. If your argument is correct, ex post facto is totally irrelevant. If their is, then the law was created before the crime, so there’s no ex post facto violation.

There’s no point in claiming there’s a violation of ex post facto, as it will never be relevant to anything. If they didn’t overstep their bounds then the law was pre-existing, if they did then the law is invalid regardless of timing so claiming ex post facto is a waste of time and distraction from the actual issue.

I know what ex post facto means. In a representative democracy, courts do not make criminal law, Legislatures do.

The pre-existing law enumerated the offenses. The Court added this offense. This “intent of the Legislature” departs from basic canons of statutory construction when the text of the law is plain. It is only judicial arrogance that suggests otherwise.

Imagine, a nine year old kid is going to school. Mom and Dad agree to follow the same set of rules with the kids. Dad sets a rule that you must eat a snack at lunch which can be:

  1. An apple
  2. A pear or
  3. Carrots

Now, kid goes to Mom and asks if he can have a peach for lunch. Mom, thinking that a peach is really not substantively different than an apple or a pear says that is just fine.

Question: Did Mom change the rule or did she just interpret what Dad meant?

And that’s not even the end of it. In real life, the Legislature (Dad) has sole power to make the laws and the Courts (Mom) reviews them for constitutionality or to discern intent where there is ambiguous text.

If Dad’s rule was that you must have “a healthy snack” for lunch, then Mom (as a court) would be properly reviewing what “healthy” means. Did Dad mean healthy as in a large snack? Is a hard boiled egg healthy? I mean, it has protein in it, but also a lot of cholesterol. Is an egg even a “snack”?

Those are the things courts legitimately decide and ones that fair minded judges on each side can disagree upon. But when you have a list, there’s nothing to interpret.

Leave out whether the court has the power to add a provision. That is a separate issue dealing with the law going forward not the actual appeal.

I’m not sure I’m following. Maybe I misread the appeal.

This is how I read it. The defendant entered a plea deal specifically pleading guilty to a statute that was not enumerated in the Megan’s Law statute. He pleaded guilty knowing that the statute for attempt did not mandate supervision. He was sentenced to be a Megan’s Law offender anyway. He appealed. The court ruled against him stating it was the intent of the legislature to put it in.

How is that not ex post facto? The court obviously doesn’t feel that way. Of course not otherwise they couldn’t have ruled that way. That doesn’t mean they are correct. Its not a good argument to say its not ex post facto because they say it isn’t.

Megan’s Law originated in my state with a case that I have some tangential experience with. The offender in that case had previously been convicted of an attempted aggravated sexual assault. Possibly that’s why our legislature made the statute very clear by putting in the language “or an attempt to commit any of these crimes.” West Virginia should have copied off of New Jersey’s work.