IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term

_______________

No. 19-0777

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STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent

v.

DAVID HIRAM WALKER, JR., 

Defendant Below, Petitioner

____________________________________________________________

Appeal from the Circuit Court of Preston County

The Honorable Steven L. Shaffer

Case No. 17-F-42

AFFIRMED

____________________________________________________________

Submitted: October 28, 2020

Filed: November 17, 2020

JUSTICE WALKER delivered the Opinion of the Court.

Samuel P. Hess, Esq.

Public Defender Corporation

Kingwood, West Virginia

Counsel for Petitioner

Patrick Morrisey, Esq.

Attorney General

Karen Villanueva-Matkovich, Esq.

Deputy Attorney General

Charleston, West Virginia

Counsel for Respondent

FILED

November 17, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “‘In reviewing the findings of fact and conclusions of law of a circuit 

court concerning an order on a motion made under Rule 35 of the West Virginia Rules of 

Criminal Procedure, we apply a three-pronged standard of review. We review the decision 

on the Rule 35 motion under an abuse of discretion standard; the underlying facts are 

reviewed under a clearly erroneous standard; and questions of law and interpretations of 

statutes and rules are subject to a de novo review.’ Syl. Pt. 1, State v. Head, 198 W.Va. 

298, 480 S.E.2d 507 (1996).” Syllabus Point 1, State v. Collins, 238 W. Va. 123, 792 

S.E.2d 622 (2016).

2. “Where the language of a statute is clear and without ambiguity the 

plain meaning is to be accepted without resorting to the rules of interpretation.’ Syl. Pt. 2, 

State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).” Syllabus Point 2, King v. West 

Virginia’s Choice, Inc., 234 W. Va. 440, 766 S.E.2d 387 (2014).

3. West Virginia Code § 62-11B-9(b) (2017) permits a participant in a 

home incarceration program to receive credit for time served while incarcerated in his 

home only where the term of home incarceration was imposed as an alternative sentence 

to another form of incarceration.
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WALKER, Justice:

Petitioner David Hiram Walker, Jr. was convicted of a single count of grand 

larceny by false pretenses and sentenced to one to ten years’ incarceration. The Circuit 

Court of Preston County suspended Mr. Walker’s sentence in favor of three years’ 

probation, with the first year to be served on home confinement. After Mr. Walker’s 

probation was revoked in June 2019, he was sentenced to the underlying one to ten years’ 

incarceration. Soon after, Mr. Walker filed a motion to correct illegal sentence under Rule 

35(a) of the West Virginia Rules of Criminal Procedure, arguing that he should be credited 

for time served on home incarceration as part of his probation. 

The circuit court denied Mr. Walker’s motion on the basis that West Virginia 

Code § 62-11B-9(b) (2017) requires that defendants receive credit for time served on home 

incarceration only if the home incarceration is an alternative sentence to another form of 

incarceration, and because Mr. Walker’s home incarceration was not an alternative 

sentence, but a condition of probation, he was not entitled to credit for time served. 

Because we agree with the circuit court that defendants are not entitled to credit for time 

served on home incarceration where the home incarceration is a condition of probation, we

affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

David Hiram Walker, Jr. pled guilty to grand larceny by false pretenses in 

the Circuit Court of Preston County. On July 27, 2018, the circuit court sentenced Mr. 
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Walker to one to ten years’ incarceration in a state correctional facility. The circuit court 

suspended the sentence and imposed a three-year period of probation with the condition 

that the first year be served on home confinement. The order set out several conditions of 

probation, but did not elaborate on the terms of the home confinement. The parties allege 

that the typical practice in Preston County is for the probation office to provide one form 

listing the rules and regulations of probation and another form setting out the terms of home 

confinement; apparently none of this information is included in the sentencing order.

1

At some point during the first year of probation, Mr. Walker violated his 

probationary terms. At that time, the circuit court did not revoke Mr. Walker’s probation 

but rather ordered him to be incarcerated for 60 days under West Virginia Code § 62-12-

10(a)(2), which enables a court to impose a period of confinement up to sixty days for a 

probationer’s first violation of any condition of supervision. Upon successful completion 

of that short incarceration, Mr. Walker was returned to probation and home confinement. 

When Mr. Walker again violated the terms of his probation, the circuit court revoked his

probation and ordered him to serve the original one-to-ten-year sentence of incarceration. 

The circuit court further granted Mr. Walker credit for the sixteen days he spent 

incarcerated prior to trial. 

1 To the extent the circuit court does not, in fact, set forth the terms of home 

confinement by order, we remind it of its duty to do so under West Virginia Code § 62-

11B-5 (2017) and this Court’s precedent in State v. McGuire, 207 W. Va. 459, 533 S.E.2d 

685 (2000).
3

Soon after the revocation of his probation on June 19, 2019, Mr. Walker filed 

a motion to correct an illegal sentence under Rule 35(a) of the West Virginia Rules of 

Criminal Procedure. As basis for this motion, Mr. Walker argued that (1) he should have 

received credit for time served during the 60-day incarceration; and (2) he should have 

received credit for time served on home confinement (237 days). The circuit court granted 

Mr. Walker’s request as to the 60-day incarceration. But, as to credit for time served while 

on home incarceration as a condition of probation, the circuit court found under the plain 

language of West Virginia Code § 62-11B-9(b) (2017) that defendants receive credit for 

time served on home incarceration only when the defendant’s home confinement was an 

alternative sentence to another form of incarceration. The circuit court further found that 

defendants are not entitled to credit for time served under this statute when the home 

incarceration is imposed as a condition of probation. So, the circuit court denied Mr. 

Walker’s motion for credit for the 237 days that he spent on home incarceration as a 

condition of probation. This appeal followed.

II. STANDARD OF REVIEW 

This Court reviews a circuit court’s decision on a motion under Rule 35 of 

the West Virginia Rules of Criminal Procedure under this standard:

“[i]n reviewing the findings of fact and conclusions of 

law of a circuit court concerning an order on a motion made 

under Rule 35 of the West Virginia Rules of Criminal 

Procedure, we apply a three-pronged standard of review. We 

review the decision on the Rule 35 motion under an abuse of 

discretion standard; the underlying facts are reviewed under a 

clearly erroneous standard; and questions of law and 
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interpretations of statutes and rules are subject to a de novo 

review.” Syl. Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 

507 (1996).[2]

With this standard in mind, we proceed to address the arguments on appeal. 

III. DISCUSSION 

Mr. Walker’s single assignment of error on appeal is that the circuit court 

should have given him credit for the time he spent on home confinement as a condition of 

probation. As noted above, the circuit court determined that a plain reading of West 

Virginia Code § 62-11B-9(b) precluded awarding Mr. Walker credit for time served 

because his home incarceration was not an alternative sentence. Upon review of the 

relevant statutes and case law, we agree. 

West Virginia Code § 62-11B-4(a) (2017) 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. It is undisputed that Mr. Walker’s home incarceration program was 

imposed as a condition of probation. West Virginia Code § 62-11B-9 sets forth the 

procedures that courts must follow when a participant in a home incarceration program has 

violated the requirements of that program:

(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 

2 Syl. Pt. 1, State v. Collins, 238 W. Va. 123, 792 S.E.2d 622 (2016).
5

conditions of the circuit court’s home incarceration order, 

he or she is subject to the procedures and penalties set forth 

in [§ 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.[3]

The circuit court reasoned that under the plain meaning of § 62-11B-9(b), a 

home incarceration participant would only be entitled to credit for time served while on 

home confinement if that home confinement were imposed as an alternative sentence to 

another form of incarceration. And, because Mr. Walker’s participation in the home 

confinement program was not imposed as an alternative sentence, but as a condition of 

probation, Mr. Walker was not entitled to credit for time served for his time spent in home 

incarceration.

3 W. Va. Code §§ 62-11B-9(a) and (b) (emphasis added).
6

Mr. Walker argues that we should read § 62-11B-9(b) in two parts: (1) the

first sentence establishes that when a participant in a home incarceration program, where 

the home incarceration is imposed as an alternative sentence, violates the terms of the home 

incarceration the participant is subject to the same penalties and procedures that apply to

probation violations; and (2) the second sentence establishes that any home incarceration 

program participant, even those whose home incarceration is not an alternative sentence, 

may receive credit for time served for any time spent on home incarceration. We believe 

Mr. Walker’s suggested interpretation of the statute is not only illogical, but also contrary 

to its plain language. 

We have held that “‘[w]here the language of a statute is clear and without 

ambiguity the plain meaning is to be accepted without resorting to the rules of 

interpretation.’ Syl. Pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).”4

 So, 

we rely on the statute’s plain meaning because § 62-11B-9(b) is free from ambiguity. The 

first sentence of § 62-11B-9(b) provides that subsection (b) applies only where “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 court’s order of home incarceration and 

the participant’s participation was imposed as an alternative sentence to another form of 

4 Syl. Pt. 2, King v. West Virginia’s Choice, Inc., 234 W. Va. 440, 766 S.E.2d 387 

(2014).
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incarceration[.]”5

 Both parties agree that this sentence is a clear limitation on the 

applicability of § 62-11B-9(b) to only those participants whose home incarceration was 

imposed as an alternative sentence. 

The bone of contention arises in the second sentence. Mr. Walker argues that 

the words “any participant” in that sentence apply broadly to all home incarceration 

program participants. But, this is an illogical reading of this provision in light of the first 

sentence’s explicit limitation of applicability of the provision to only those participants 

whose home incarceration is imposed as an alternative sentence. If we were to read the 

second sentence as broadly as Mr. Walker suggests, we would deprive 

§ 62-11B-9(b) of any purpose because it would just be a restatement of § 62-11B-9(a). 

Specifically, if we isolate the first sentence of § 62-11B-9(b), that section 

would just provide that participants in a home incarceration program where the home 

incarceration was imposed as an alternative sentence are “subject to the same procedures 

involving confinement and revocation as would a probationer charged with a violation of 

the order of home incarceration.” That is precisely what § 62-11B-9(a) already does. 

Section 62-11B-9(a) directs that where “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 confinement order, he or she is subject to the penalties and procedures 

5 W. Va. Code § 62-11B-9(b) (emphasis added).
8

set forth in [§ 62-12-10].” There is no language limiting the applicability of subsection (a), 

so it applies broadly to all instances in which there is a violation of a home incarceration 

order, including where the home incarceration is imposed as an alternative sentence. 

And, § 62-12-10 sets out the various procedures and penalties that apply to 

probationers for violations of the terms of their probation, including the calculation of 

credit for time served. More specifically, § 62-12-10(a)(3) provides that “[i]n computing 

the period for which the offender is to be confined [after probation is revoked], the time 

between his or her release on probation and his or her arrest may not be taken to be any 

part of the term of his or her sentence.”6

 Returning to § 62-11B-9(a), if we were to apply 

all of the procedures and penalties provided for in § 62-12-10, no participant in a home 

confinement program would be entitled to credit for time served (absent actual 

incarceration). 

Similarly, if we isolate the first sentence of § 62-11B-9(b), we would reach 

the same result that no home incarceration program participant, including one whose home 

incarceration was imposed as an alternative sentence, would be entitled to credit for time 

served. As such, the only thing distinguishing subsections (a) and (b) is the second 

sentence of § 62-11B-9(b), which provides that a “participant shall receive credit towards 

6 However, we are careful to point out that that language does not bar credit for time 

served when the probationer is actually incarcerated for purposes of a sentence under West 

Virginia Code § 62-12-10(a)(2) because that provision explicitly permits credit for time 

spent incarcerated pursuant to its terms.
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any sentence imposed after a finding of violation for the time spent in home incarceration.” 

If the Legislature had intended that all home incarceration program participants receive 

credit for time served in home incarceration, it would have included this second sentence 

under § 62-11B-9(a) instead of § 62-11B-9(b). This is because subsection (a) applies 

broadly to all forms of home incarceration, while, as stated several times above, subsection 

(b) is limited by its first sentence to only apply where home incarceration was imposed as 

an alternative sentence. We have previously stated that “courts must presume that a 

legislature says in a statute what it means and means in a statute what it says there.”7

 So, 

we conclude that West Virginia Code § 62-11B-9(b) (2017) permits a participant in a home 

incarceration program to receive credit for time served while incarcerated in his home only 

where the term of home incarceration was imposed as an alternative sentence to another 

form of incarceration. 

Because there are no disputes as to the underlying facts in this matter, it is 

clear that Mr. Walker was not entitled to credit for time served while on home 

incarceration, because that home incarceration was imposed as a condition of probation 

rather than as an alternative sentence to another form of incarceration. So, the circuit court 

did not abuse its discretion in denying Mr. Walker’s Rule 35(a) motion to correct an illegal 

sentence and we affirm.

7 King, 234 W. Va. at 444, 766 S.E.2d at 391.
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IV. CONCLUSION 

Based on the foregoing, we affirm the Circuit Court of Preston County’s 

August 21, 2019 Order Denying Defendant’s Rule 35(a) Motion to Correct Illegal 

Sentence. 

Affirmed.