An assistant Kanawha County prosecutor is challenging the state Attorney General’s interpretation of a new law that prohibits life sentences without parole for people convicted of crimes committed when they were juveniles.
Fred Giggenbach filed a motion Wednesday asking a circuit judge to clarify the new law using the case of Kelly Chapman. The Attorney General is interpreting the law to apply retroactively and Giggenbach says that’s wrong.
In 2009, Kanawha Circuit Judge Duke Bloom sentenced Chapman when he was 16 to life in prison without the possibility of parole for shooting a pregnant woman in the stomach and causing the death of her fetus. The shooting occurred on Charleston’s East End.
“Retroactively applying these new parole timeframes has serious statewide implications on heinous crimes,” Giggenbach said. “For a statute to be retroactive it must clearly state so. This statute does not and the Attorney General’s interpretation, as counsel to the parole board, nullifies Judge Bloom’s orders.”
Stephen Connolly, an assistant attorney general, wrote a memorandum in May to the parole board about the new law, House Bill 4210.
Connolly wrote, “it is advisory that HB 4210 be applied to past, present and future juvenile offenders serving sentences of ‘life without mercy’ or its functional equivalent.”
The law also applies to consecutive sentences adding up to more than 15 years. Defendants are eligible to see the parole board after serving 15 years.
In July, Joe Altizer, counsel to the Speaker of the House, wrote to Connolly stating that he takes issue with the law being considered retroactive, because the law doesn’t specifically say it should be retroactive.
Altizer points to state code, which says, “A statute is presumed to be prospective in its operation unless expressly made retrospective.”
“If the Legislature intends retroactivity, it has to expressly say it in statute,” Altizer wrote to Connolly. “That was not done in this case. I would strongly urge you to reconsider the conclusion expressed in your memo to reflect the historical practices and the rules of statutory construction used by the West Virginia Legislature.”
On Tuesday, according to the Charleston Daily Mail, the West Virginia Board of Parole denied parole for five inmates serving life sentences for first-degree murder, who became eligible for parole under the new law.
They are among seven inmates who were identified as eligible for parole under the law.
The inmates who were denied parole include William E. Wayne, who was among more than a dozen prisoners who escaped from the old state penitentiary in Moundsville in 1979. Wayne is serving a life without mercy sentence for killing a shopkeeper in Wood County in 1975, said Lawrence Messina, spokesman for the Department of Military Affairs and Public Safety.
Wayne also is serving a life sentence with the possibility of parole for the death of a West Virginia State Police trooper during the 1979 prison breakout.
The other inmates include John Moss Jr., Lawrence T. Redman, Cecil “Clay” Holcomb III, and Larry D. Hall.
Moss received three consecutive life without mercy sentences in 1984 for the slayings of a St. Albans woman and her two children. Redman was sentenced in 1984 for killing a shopkeeper in Berkeley County.
Holcomb was sentenced in 1993 for killing his parents in Fayette County. Hall received a life without mercy sentence in 1995 for the fatal beating of a man in Taylor County.
All five inmates will go before the parole board again in 2017.
Michael D. Day is scheduled to appear before the parole board in December 2017. He was sentenced in 2002 for killing a homeless veteran in Cabell County.
Chapman is scheduled to go before the parole board in 2023. Bloom upheld his sentence in 2011.
“The judge looked at all the evidence, the pre-sentence report and all aspects of the case and said mercy was not warranted. They’re basically gutting a judge’s order by doing this,” Giggenbach said. Bloom will hear the motion Giggenbach filed.
The Associated Press contributed to this report.
Reach Kate White at firstname.lastname@example.org, 304-348-1723 or @KateLWhite on Twitter.