State Supreme Court takes up opportunity to worship case - WOWK 13 Charleston, Huntington WV News, Weather, Sports

State Supreme Court takes up opportunity to worship case

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Should a person serving on home confinement be able to choose where they worship?

This is the question parties presented in oral arguments before the state Supreme Court Jan. 8. Parties argued whether the opportunity to worship includes choosing the place of worship.  

Charles R. Elder, of Bridgeport, entered guilty pleas in Harrison County Circuit Court to charges of sexual abuse by parent, guardian, custodian or person in position of trust and to third degree sexual assault.

The state alleges in a court brief that Elder "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 Elder a plea agreement, and in February 2009 the court sentenced Elder 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.

Elder would serve these sentences by electronically monitored home confinement, with the sentences to run concurrently.

However, concerns arose and Elder 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.

Elder 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.

Elder'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.

The court allowed Elder to leave the state for "properly scheduled and necessary medical appointments," and he could have one hour per day of recreational time outside his home, but he could not leave his yard.

Cook filed a brief in the state Supreme Court asking whether the circuit court judge erred in not allowing him to attend church, whether home confinement monitoring was "too severe" for his deteriorating health and whether he should have been granted habeas corpus because of ineffective assistance of counsel.

The brief additionally requested that Elder be granted probation or a less restrictive sentence, for Elder to be able to move to Texas to get medical relief, to have his home confinement be modified or for the case to be remanded back to Harrison County Circuit Court so that he could attend church services at a place of worship.

The brief noted Elder is diagnosed with Parkinson's disease, post traumatic stress disorder and depression.

"Petitioner's health has deteriorated so severely that the only fair form of relief based upon the trial court's misconduct by providing home incarceration is to grant the writ of habeas corpus and that petitioner be released immediately or in the alternative that the supreme court should declare probation as the appropriate sentence," court documents state.

Laura Young, representing Annabelle Scolapia, home confinement officer, argued in her brief that the sentence was within the legal limits.

Young additionally argued the judge took Elder's health into account when imposing a sentence.

"In fact, the sentence was incredibly lenient," the brief states. "Any issue with specific restrictions of home confinement could have and should have been addressed by the petitioner to the home confinement officer, rather than wasting the resources of the judicial system."

Chief Justice Brent Benjamin said the 600-pound gorilla in the room was that he "got off easier than he would have."

"There are a lot of veterans in the prison system. There are a lot of people with life-threatening illnesses, and your guy is sitting at home. That's the 600-pound gorilla. … A lot of things you are focused on are issues that can be brought in front of a judge, but it sounds like the judge is considering them. So why are you here?"

Cook responded the main issue was that Elder could not attend church, arguing that it is Elder's constitutional right to freedom of religion.

Elder's church is the Weston Church of God, which is about 45 minutes away from home. Cook said the church provided a van which could take Elder to and from the three-day-a-week services. Cook also said the church already had a security guard in place.

The trial court ruled that Elder could not attend this church, noting Elder was not  attending when he was sentenced and he was not attending church on a regular basis.

Court documents also state that the trial court also denied his request because "petitioner had been adjudicated for crimes against children and that there were children in the church.

However, Young argued in her brief that the court wasn't limiting his constitutional right.

"Nothing in the orders denying the petitioner's writ prohibits members of the church in question from visiting with the petitioner in his home, praying with him, reading the Bible with him or even holding an organized religious service," the brief states. "What the judge is disallowing is the petitioner being permitted from leaving his home three times a week, for two hours at a time, and another hour and a half of travel time for each service to attend church services, when the petitioner himself stated that he did not attend church prior to his home incarceration."

West Virginia's newest justice, Allen Loughry, asked if there were any churches closer to Elder's home.

Cook mentioned the church's secure van and that everyone at the church was aware of his conviction.  

Young, however, argued Elder does not have the right to choose where to worship.

"By his behavior, he forfeited his right to go where he wants and do what he wants to do. … He no longer has the right to choose where he wants to go to worship," she said. "He has the right to worship but the court has the right to say, ‘No you may not go to a specific place an hour and a half away.'"