### FILED March 14, 2018 Ketchum, J. Dissenting. State v. Jedediah C ., Case No. 16-1067. released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA The circuit court violated the Defendant’s rights under the Double Jeopardy and Equal Protection Clauses of the West Virginia Constitution by denying him credit for time served on home incarceration. It is undis puted that the Defendan t was subject to all the restrictions placed on o ffenders under the Home Incar ceration Act [W.Va. Code § 62

- 11B-1 to -13]. Yet, the majority held that he was not entitled to credit for time served simply because his home incarceration was impos ed before his conviction, as opposed to after his conviction. The majority’s holdi ng is based upon a distinction without a difference, and therefore, I dissent.

We have held that a defendant has a constitutional right, under the Double Jeopardy and Equal Prot ection Clauses of the West Virg inia Constitution, to credit for time served in jail before a conviction agai nst a term of incarceration imposed after conviction. Syl. Pt. 6, State v. McClain , 211 W.Va. 61, 561 S. E.2d 783 (2002). We afford the same treatment to defendants pl aced on home incarceration after a conviction under the Home Incarceration Act. Syl. Pt. 3, State v. McGuire , 207 W.Va. 459, 533 S.E.2d 685 (2000). The reason behind this similar tr eatment is simple: a person placed on home incarceration after a conviction under the Home Incarceration Act is subject to numerous restrictions under W.Va. Code § 62-11B-5, and thus, home incarceration under the Act is penal.

In this case, the Defendant’s term of home incarceration as a condition of pretrial bail was also penal. It is undisputed that he was subject to all of the restrictions placed on defendants after a conviction under the Home Incarceration Act. Thus, his home incarceration was as restrictive on his liberties as a sentence of postconviction home incarceration, which entitles him to credit for time served. Mo reover, the circuit
court’s stated reason behind denying the Defendant credit fo r time served was the judge’s
belief that the Defendant had benefitted enough from his plea bargain with the State and that his punishment should not be further shorte ned by giving him cred it for time served.

Yet, the majority relies on a general distinction we have made between home incarceration after a conviction under the Home Incarceration Act and home incarceration as a condition of pretrial bail under W.Va. Code § 61-1C-2. The majority believes that home incarceration as a conditi on of pretrial bail under W.Va. Code § 61

- 1C-2 is not penal in nature. The majority st ated that: “the purpose of pre-trial bail is not to punish, but rather it acts as security for th e appearance of a defendant to answer to the specific criminal charge[.]” (Internal quotations, citations, and emphasis omitted). Theyconclude that, because the purpose of home in carceration as a conditi on of pretrial bail is not penal, a circuit court has discretion under our holding in Syllabus Point 4 of State v. Hughes , 197 W.Va. 518, 476 S.E.2d 2d 1889 (1996) and W.Va. Code § 62-11B-11(b) to deny credit for time serv ed while on home incarceration as a condition of pretrial bail.

The majority’s reliance on this distinction ignores th e fact that the Defendant’s pretrial home incarceration was pena l, as reflected by the fact that he was subject to the postconviction home incarceration restrictions enumerated in W.Va. Code § 62-11B-5. Thus, the Defendant’s pretrial home incarceration was effectively the same as home incarceration after a conviction un der the Home Incarceration Act. The restrictions of his home incarceration were not different merely because they were imposed before he was convicte d. Yet, the majority draws an artificial line separating his pretrial home incarceration from postconviction home incarceration, in which a defendant is indisputably entitled to credit for time served.

The holding in this case clearly vi olates the Double Jeopardy and Equal Protection Clauses of the West Virg inia Constitution. Our holding in State v. McGuire

, supra should be expanded to clarify that defe ndants sentenced to home incarceration as a condition of pretrial bail have a constitutional right to credit for tim e served when they are subject to the restrictions enumer ated in W.Va. Code § 62-11B-5.