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By Andrea Lannom
A convicted sex offender will not be able to choose where he worships, West Virginia Supreme Court justices recently ruled, saying an offender does not have an automatic right to attend religious services.
Instead, it is up to the trial court's discretion, the Feb. 22 opinion states.
[name withheld] of Bridgeport entered guilty pleas in Harrison County Circuit Court to charges of sexual abuse by a person in position of trust and to third degree sexual assault.
The state alleged in a court brief that [name withheld] "perpetrated hundreds, if not thousands of sexual assaults against his stepdaughters while they were minors and that after one of the stepdaughters was impregnated by the petitioner, the petitioner himself performed a crude abortion on the victim."
The Harrison County prosecuting attorney's office offered [name withheld] a plea agreement, and in February 2009 the court sentenced [name withheld] to not less than 10 nor more than 20 years for the first charge and not less than one nor more than five years for the third degree sexual assault charge.
[name withheld] would serve these sentences by electronically monitored home confinement, with the sentences running concurrently.
The reason for this sentence is because of [name withheld]'s diagnosis of Parkinson's disease, post traumatic stress disorder and depression.
However, concerns arose and [name withheld] wanted the trial court to address six areas: the failure of counsel to take an appeal, "erroneous information in the pre-sentence report, ineffective assistance of counsel regarding sentencing/post sentencing appeal and motion to reconsider, a more severe sentence than expected, excessive sentence and mistaken advice of counsel as to parole eligibility."
Newcomer Justice Allen Loughry delivered the opinion of the court, affirming the lower court's decision.
"We find no basis for habeas corpus relief or for further modification of the terms of petitioner's sentencing," the opinion states.
Until this case, the opinion notes, the court hasn't addressed whether home incarceration constitutes "the qualifying level of incarceration for purposes of seeking post-conviction relief in habeas corpus."
Justices ruled that federal law "leaves no doubt" that this remedy is available to those on home incarceration, noting the U.S. Supreme Court has "broadly interpreted" the phrase "in custody" to extend to "any situation where there are significant restraints on an individual's liberty."
"The fact that petitioner is serving his sentence in an alternate fashion subject to the terms of the Home Incarceration Act does not mean that he has the freedom to come and go as he pleases; his daily activities are subject to both the supervision and control of the Home Incarceration Office," the opinion states.
[name withheld] questioned whether habeas corpus should be granted because he paid for services to provide a motion to reconsider and an appeal but he "received neither," court briefs state.
[name withheld]'s attorney, Steven T. Cook from the Stapleton Law Office, filed a petition for post-conviction writ of habeas corpus in March 2010, but the court denied the writ regarding allegations of ineffective assistance of counsel.