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Justices rule sex offender cannot choose where to worship

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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. 

Charles R. Elder 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 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 running concurrently.

The reason for this sentence is because of Elder's diagnosis of Parkinson's disease, post traumatic stress disorder and depression. 

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."

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.

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.

"Given that petitioner received what can only be viewed as a lenient sentence in view of his admission to committing undisputedly offensive criminal conduct, we seriously doubt that a meritorious appeal could have been taken from the trial court's sentencing decision," the opinion states.

The last argument was whether Elder could choose where to worship. The lower 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.

Elder's desired church is the Weston Church of God, which is about 45 minutes away from home. Cook said the church provided a van that 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.

The opinion notes that one of the exceptions for leaving home is attending church. Elder argued he had a right to attend religious services. 

"In making this argument, petitioner misreads the legislative use of the introductory language and further fails to consider that the exceptions to the requirement that an offender be continuously within the confines of his or her home are clearly subject to court approval," the opinion notes.

"In suggesting that the Legislature has mandated that every home incarceration order must authorize participation in the areas covered by the exceptions to confinement petitioner overlooks an implied need to determine whether those exceptions apply to the particular offender."

The lower court refused Elder's argument taking into an account the "duty to protect the children who would either be on the church bus or van or inside the sanctuary during worship services."

The trial court additionally took into account that Pastor Hughes and other church members were regularly visiting Elder in his home to conduct Bible studies.

"We find no basis for concluding that the trial court erred in denying petitioner's request to attend worship services at a specified church in view of the competing concerns necessarily injected into the decision by virtue of petitioner's status as a sexual offender," the opinion states, later noting. "Mr. Elder is free to exercise his religious freedom in other ways."