Calculating Post‑Revocation Supervised Release Under W. Va. Code § 62‑12‑26(j): Commentary on State v. Brautigam

I. Introduction

The Supreme Court of Appeals of West Virginia’s decision in State of West Virginia v. Cody Brautigam (No. 22‑938, Nov. 4, 2025) addresses two important and increasingly recurrent questions in West Virginia criminal practice:

• How far may a court go, consistent with constitutional proportionality, in sentencing a sex offender to a lengthy prison term upon revocation of supervised release?
• How, precisely, must a sentencing court calculate the maximum available length of a new term of supervised release after imposing imprisonment for a supervised release violation under W. Va. Code § 62‑12‑26(j)?

The Court, in an opinion by Justice Bunn, upholds a 25‑year prison sentence imposed upon Brautigam’s fourth revocation of supervised release, concluding that it is not constitutionally disproportionate under Article III, § 5 of the West Virginia Constitution and the Eighth Amendment. At the same time, the Court vacates and remands the portion of the sentence that imposed an additional 25‑year term of supervised release, holding that it exceeds the statutory maximum allowed by W. Va. Code § 62‑12‑26(j).

Most significantly, the Court creates a new syllabus point clarifying how courts must compute the maximum length of any additional supervised release term following a revocation sentence of imprisonment. That clarification will structure sentencing in supervised release revocation cases going forward.

II. Background and Procedural Posture

A. Underlying Convictions and Original Sentence

In April 2013, Cody Brautigam pled guilty by information to two counts of third‑degree sexual assault under W. Va. Code § 61‑8B‑5(a)(2). Each count involved a very young victim: one nine years old, the other eight. The offenses occurred in mid‑2012. Under the plea:

• The parties jointly recommended “alternative sentencing,” specifically placement at the Anthony Correctional Center (the “Anthony Center”) with participation in the Division of Corrections Sex Offender Program.
• The plea reflected Brautigam’s understanding that, upon release, he would be subject to supervised release under W. Va. Code § 62‑12‑26.

At a combined plea and sentencing hearing, the circuit court:

• Sentenced him to two consecutive terms of 1–5 years imprisonment (one on each count).
• Suspended that imprisonment.
• Committed him to the Anthony Center.
• Imposed a 25‑year term of supervised release to follow his discharge from probation, incarceration, or parole.

Supervised release was mandatory because his convictions fell within the scope of W. Va. Code § 62‑12‑26(a), which authorizes up to 50 years of supervised release for qualifying sex offenses.

B. Failures at the Anthony Center and Start of Supervised Release

Brautigam reported to the Anthony Center in May 2013. By July 2013, the warden notified the circuit court that he was “unfit to remain” there, citing “significant behavior problems,” including assaulting another offender. In August 2013, the court revoked the alternative placement and committed him to the Division of Corrections.

He discharged his underlying prison sentence on September 27, 2017 and commenced his 25‑year supervised release term that same day.

C. Four Revocations of Supervised Release

From 2017 forward, Brautigam repeatedly violated the conditions of his supervised release, resulting in four separate revocation proceedings. The pattern and escalation of his conduct are central to the Court’s proportionality analysis.

1. First Revocation (2018) – 60 days’ imprisonment

In April 2018, less than a year into supervision, his probation officer filed a petition alleging multiple violations of sex‑offender‑specific conditions:

• Prohibited contact with minors: he invited a minor child into his residence on six days in April 2018 and did not report the contact.
• Unreported intimate relationships:
  • A dating/sexual relationship with a 17‑year‑old minor, not disclosed to probation.
  • A romantic relationship with a woman who had a minor child, which he continued despite being told to cease contact.

He stipulated to the violations. Citing the “graduated sanctions” model in W. Va. Code § 62‑12‑10(a)(2) (for probation violations), the circuit court sentenced him to 60 days’ imprisonment and authorized GPS monitoring upon release.

2. Second Revocation (2019) – 2 years’ imprisonment

In June 2019, a second petition alleged six additional violations, mainly involving:

• Electronic contact with a 13‑year‑old through an unreported Facebook Messenger account, despite a ban on residing with or visiting minors.
• Nude photos and obscene videos in his Messenger account from a woman with whom he had an unreported intimate relationship.
• Multiple undisclosed romantic relationships, including with women who had minor children.
• Deliberately deleting an unreported Messenger account “to avoid detection,” in violation of computer‑use conditions forbidding destruction of usage records.
• Creating a new, unreported online messaging account under a different name.

Again, he stipulated. The court revoked supervised release and imposed 2 years’ imprisonment, with supervised release to resume thereafter. The order specified that the length of the subsequent supervised release term “shall not exceed” the statutory maximum “less any term of imprisonment that was imposed upon the prior revocation”—tracking the language of § 62‑12‑26(j) as it then existed.

3. Third Revocation (2021) – 1 year’s imprisonment

The third petition (February 2021) alleged that Brautigam violated conditions by:

• Associating with a known or suspected drug user.
• Associating with a person with a felony record.
• Failing to report dating/intimate relationships.

All three violations involved a woman with a felony record and drug history, whom probation had already instructed him to avoid. He stipulated, and the court imposed 1 year’s imprisonment. The order did not itself specify any new term of supervised release to follow, an omission Brautigam later tried (unsuccessfully) to leverage on appeal.

4. Fourth Revocation (2022) – 25 years’ imprisonment + 25 years’ supervised release

The fourth and underlying revocation petition, filed April 2022, painted a picture of persistent non‑compliance:

• Following release from his third revocation term in September 2021, he was transferred to Roark‑Sullivan Lifeway Center in Charleston due to housing difficulties in the northern panhandle. He was discharged from that program on November 24, 2021 for violating program rules.
• On December 1, 2021, he admitted to using methamphetamine; he was directed to inpatient treatment at Prestera Center, but was discharged for a “pattern of policy violations.”
• He was then sent to Lotus Recovery Centers, from which he was discharged on April 1, 2022 for “inappropriate sexual boundaries with women and continued intrusion into female rooms.”
• After that discharge, he failed to contact his probation officer for thirteen days.

The petition alleged violations including:

• Possession and admitted use of methamphetamine.
• Repeated curfew violations.
• Associating with people with criminal records, including contacting inmates and placing money on their jail accounts.
• Deleting photos, texts, and emails in violation of computer‑use policies.
• Failing to disclose two dating or intimate relationships.

At the hearing, Brautigam admitted the allegations and apologized. Defense counsel argued he was a “disturbed individual who need[ed] treatment,” possibly mental health treatment, and sought leniency to allow eventual commitment to a mental institution rather than extended incarceration.

The State presented testimony from his supervising probation officer, who:

• Described Brautigam’s attraction to minors.
• Testified that Brautigam hid relationships and used methamphetamine, which “causes hypersexuality.”
• Opined that he had not previously supervised anyone as dangerous as Brautigam.

The State requested 25 years’ imprisonment and an extended term of supervised release thereafter.

The circuit court:

• Imposed 25 years’ imprisonment (stated as “twenty‑five (25) years” in the order), granting five years’ credit for time previously served on the underlying convictions, plus credit for time served on the fourth petition.
• Ordered an additional 25‑year term of supervised release to commence upon his release from this revocation sentence.

The written order recited that, “pursuant to West Virginia Code § 62‑12‑26(j),” upon release he “shall be subject to supervised release for an additional twenty‑five (25) years.”

D. Appeal and Issues Presented

On appeal, two central issues emerged:

1. Constitutional proportionality. Was the 25‑year term of imprisonment imposed on the fourth revocation so excessive, in light of the underlying offenses and his conduct on supervision, that it violated the proportionality principle of Article III, § 5 and the Eighth Amendment?
2. Statutory limit on additional supervised release. Did the additional 25‑year supervised release term exceed the maximum allowed by W. Va. Code § 62‑12‑26(j), which requires that any post‑revocation supervised release “shall not exceed” the authorized term “less any term of imprisonment that was imposed upon revocation of supervised release”?

Initial appellate counsel filed a “no‑merit” brief under Rule 10(c)(10)(b) of the West Virginia Rules of Appellate Procedure, asserting that an appeal would not be reasonable. The Supreme Court, nonetheless, ordered supplemental briefing on proportionality and the calculation of the maximum supervised release term. New counsel was ultimately appointed for Brautigam.

III. Summary of the Opinion

The Supreme Court’s disposition is two‑fold:

1. Sentence of imprisonment affirmed. The Court holds that the 25‑year term of imprisonment imposed upon the fourth revocation of supervised release is not constitutionally disproportionate:
   • It does not “shock the conscience” when viewed in light of the seriousness of the underlying sex offenses, his repeated and escalating violations, and the breach of the court’s trust.
   • Under the objective proportionality test (the Wanstreet factors), the sentence aligns with the legislative purposes of supervised release and is not out of line with similar revocation sentences in West Virginia.
2. Additional supervised release term vacated and remanded. The Court concludes that the 25‑year additional term of supervised release violates W. Va. Code § 62‑12‑26(j) because the circuit court failed to subtract all prior revocation imprisonment terms when calculating the maximum permissible additional term. The matter is remanded for recalculation and resentencing only as to the supervised release portion.

The key new rule appears in Syllabus Point 5, where the Court interprets § 62‑12‑26(j) as requiring subtraction of both:

• The imprisonment term imposed in the current revocation; and
• All prison terms imposed in prior revocations of supervised release for the same underlying offenses,

from the authorized maximum supervised release term under § 62‑12‑26(a) to determine the upper limit of any new supervised release term the court may impose after a revocation.

IV. Detailed Analysis

A. Precedents and Authorities Relied Upon

1. Proportionality Doctrine: Vance, Cooper, and Wanstreet

Three foundational West Virginia cases frame the proportionality analysis:

• State v. Vance, 164 W. Va. 216, 262 S.E.2d 423 (1980).
  • Syllabus Point 8 (quoted as Syllabus Point 1 in Brautigam) articulates that Article III, § 5 contains an explicit proportionality principle: “Penalties shall be proportioned to the character and degree of the offence.”
  • Syllabus Point 7 (quoted as Syllabus Point 2) recognizes that a criminal sentence can be so long that it violates the Eighth Amendment’s implicit proportionality principle.
• State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851 (1983).
  • Syllabus Point 5 (quoted as Syllabus Point 3 in Brautigam) sets out the “subjective” proportionality test: a sentence may be unconstitutional if it is so disproportionate that it “shocks the conscience and offends fundamental notions of human dignity.”
• Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).
  • Syllabus Point 5 (quoted as Syllabus Point 4) provides the “objective” test: courts must consider the nature of the offense, legislative purpose of the punishment, comparisons with other jurisdictions, and comparisons with other offenses in West Virginia.

These precedents collectively establish that West Virginia’s proportionality analysis operates in two stages: a subjective “shock the conscience” screen (from Cooper and Vance), followed, when necessary, by an objective multi‑factor assessment (Wanstreet).

2. Supervised Release and Revocation: West Virginia cases

Several West Virginia decisions guide the Court’s understanding of supervised release and its revocation:

• State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011). The Court has previously explained that the legislature adopted supervised release for certain sex offenses in order “to adequately protect society,” recognizing that these offenders require “community-based supervision and treatment over and above incarceration.” Supervised release both addresses the seriousness of the crimes and facilitates treatment during transition back to the community, with the goal of modifying offending behavior.
• State v. Hargus, 232 W. Va. 735, 753 S.E.2d 893 (2013).
  • The Court previously undertook proportionality analysis of revocation sentences, including five‑year and two‑year revocation prison terms.
  • Hargus emphasized that a “post-revocation sanction simply is a continuation of the legal consequences of a defendant’s original crime” and not an additional penalty; that understanding underlies Brautigam’s characterization of revocation imprisonment as a sanction for “breach of trust” rather than a second punishment for the underlying offense.
• State v. White, 249 W. Va. 532, 896 S.E.2d 698 (2023).
  • Provides the standard of review: questions of law and statutory interpretation in supervised release revocation orders are reviewed de novo (Syllabus Point 1 in White, cited for that proposition).
  • Discusses federal precedent (United States v. Haymond) concerning the nature and constitutional limits of supervised release, which Brautigam builds upon.
• Unpublished decisions used as comparators. Although memorandum decisions are not binding precedent, the Court uses them for comparative purposes:
  • State v. Marlow P., No. 22‑691, 2024 WL 313770 (W. Va. Jan. 25, 2024) (mem.) – affirming a 50‑year revocation sentence for a defendant whose violations (marijuana use and termination from sex‑offender treatment) were, on their face, less severe than Brautigam’s pattern.
  • State v. Payne, No. 17‑0195, 2018 WL 1444287 (W. Va. Mar. 23, 2018) (mem.) – affirming a 24‑year revocation sentence on a third revocation where the defendant engaged in escalating misconduct on supervision.
  • State v. Roger G., No. 14‑1200, 2015 WL 5125486 (W. Va. Aug. 31, 2015) (mem.) – affirming a 10‑year revocation sentence.
  • State v. Winning, No. 17‑0921, 2018 WL 4944416 (W. Va. Oct. 12, 2018) (mem.) – rejecting a claim that time served on the underlying prison sentence must be credited against a supervised release revocation sentence; this principle is reaffirmed in Brautigam in the context of § 62‑12‑26(j).
  • State v. Raymond B., No. 20‑0605, 2021 WL 2580715 (W. Va. June 23, 2021) (mem.) – dealing with Haymond-based attacks on West Virginia’s supervised release scheme.
  • State v. Shingleton, No. 23‑193, 2025 WL 1165884 (W. Va. Apr. 22, 2025) (mem.) – affirming a 10‑year revocation sentence without undertaking full proportionality analysis, illustrating that the Court does not automatically scrutinize all fixed‑term revocation sentences for proportionality.

3. Federal Supervised Release Jurisprudence

The Court deliberately situates West Virginia supervised release within the broader context of federal supervised release:

• Esteras v. United States, ___ U.S. ___, 145 S. Ct. 2031 (2025). Quoted for the proposition that supervised release is “a form of postconfinement monitoring” that provides a type of “conditional liberty,” allowing defendants to serve part of their sentence in the community subject to conditions. It is characterized as rehabilitative and transitional.
• United States v. Haymond, 588 U.S. 634 (2019).
  • The plurality opinion (and, more importantly, Justice Breyer’s controlling concurrence) describes supervised release as designed to “encourage rehabilitation after the completion of [a defendant’s] prison term.”
  • Justice Breyer emphasizes that revocation sanctions are primarily responses to the defendant’s “breach of trust” in failing to comply with court‑imposed conditions, rather than punishment for the “particular conduct triggering the revocation” as if it were a new crime. Brautigam relies heavily on this language.
• Other federal authorities relied upon by analogy.
  • United States v. Coston, 964 F.3d 289 (4th Cir. 2020) – quoted in White and used here to underscore the rehabilitative purpose of supervised release.
  • United States v. Fifer, 863 F.3d 759 (7th Cir. 2017) – recognizing that the main goal of supervised release is to prevent recidivism and support re‑entry.
  • United States v. Sosa, 642 F. App’x 948 (11th Cir. 2016) – emphasizing that revocation sentences should respond to the breach of trust and the seriousness of the violation and criminal history; cited in Brautigam to justify more serious sanctions for more serious violations.
  • United States v. Fernandez, 152 F.4th 124 (2d Cir. 2025) – reiterating that revocation consequences are sanctions for breach of trust and “are not additional punishments for the underlying conviction.”

By weaving these federal authorities into its reasoning, the Court reinforces that West Virginia’s supervised release system, though statutory and narrower in coverage, is conceptually aligned with the federal model: supervised release is part of the original sentence; revocation sanctions respond to breach of trust; and supervised release exists to manage risk and rehabilitate offenders in the community.

B. The Court’s Legal Reasoning

1. Proportionality of the 25‑Year Revocation Sentence of Imprisonment

The Court first addresses whether Brautigam’s 25‑year prison sentence on his fourth revocation violates the proportionality guarantees of:

• Article III, § 5 of the West Virginia Constitution, which explicitly requires that penalties be proportioned “to the character and degree of the offence,” and
• The Eighth Amendment’s implicit proportionality principle, as incorporated through Vance and Cooper.

a. Scope of proportionality review in revocation cases

Ordinarily, proportionality review is reserved for:

• Sentences without a fixed statutory maximum, or
• Life recidivist sentences.

However, the Court notes that it has previously examined proportionality of supervised release revocation sentences (Hargus) and elects to do so here. This reflects recognition that very long fixed terms imposed upon revocation (25, 24, 50 years, etc.) raise concerns analogous to non‑parolable or life‑effect sentences, especially when imposed for violations of non‑violent conditions.

b. The subjective test: Does the sentence “shock the conscience”?

Under Syllabus Point 5 of Cooper (restated as Syllabus Point 3 in Brautigam), punishment may be unconstitutional if so disproportionate that it shocks the conscience and offends fundamental human dignity.

Key considerations in the Court’s subjective analysis:

• Seriousness of the underlying convictions. Brautigam pled to two counts of third‑degree sexual assault involving eight‑ and nine‑year‑old victims—serious sex offenses that legitimately trigger a heightened public‑safety and supervision concern.
• Repeated opportunities to comply. The circuit court gave him multiple chances:
  • Initial alternative placement at the Anthony Center with sex offender programming—terminated for serious behavioral problems.
  • Three earlier revocations with relatively modest prison terms: 60 days, 2 years, and 1 year, each followed by resumed supervised release.
• Persistent and escalating violations. Over the course of years, Brautigam:
  • Repeatedly engaged in prohibited contact or communication with minors.
  • Developed undisclosed intimate relationships, including with minors and with adults who had minor children.
  • Deliberately concealed or deleted electronic communication records to evade supervision.
  • Used methamphetamine, violated treatment programs, and engaged in “inappropriate sexual boundaries” during inpatient care.
  • Demonstrated a pattern of dishonesty and manipulation of supervision systems.
• Public safety risk and breach of trust. Particularly given his underlying offenses against children, his behaviors—secret romantic relationships, hidden electronic contact with minors, persistent rule‑breaking in treatment—directly undermine the core protective and rehabilitative purposes of supervised release. The Court underscores that these are serious “breaches of trust” toward the sentencing court and the supervising authorities.

Given these factors, the Court concludes that a 25‑year prison term—though severe—does not “shock the conscience.” It is a reaction to serial non‑compliance and escalating risk, rather than a first response to minor or technical missteps.

c. The objective test: The Wanstreet factors

Because the sentence passes the subjective test, the Court proceeds—out of caution—to the objective test:

1. Nature of the offense and legislative purpose behind the punishment.

For revocation sentences, the Court frames the “offense” as the totality of the supervised release violations and resulting breach of trust, not simply the original sex offenses. The legislative purposes of supervised release, as identified in James, are:

• Protecting the public from high‑risk offenders;
• Providing long‑term community‑based supervision and treatment;
• Facilitating structured re‑entry and behavioral modification.

Revocation sentences exist to enforce those aims and respond when the supervised release structure fails because the offender will not comply. Given Brautigam’s repeated non‑compliance and high risk, a severe revocation term reasonably serves the legislative purpose of incapacitation and deterrence.

2. Comparison with punishments in other jurisdictions.

Although the Court does not undertake a 50‑state survey, it notes that other jurisdictions (especially the federal system) permit substantial revocation sentences for supervised release violations, especially in sex offense cases, and often view such sanctions as addressing breach of trust rather than the underlying crime. This is broadly consistent with the approach in Haymond, Sosa, and Fernandez.

3. Comparison with other offenses and sentences within West Virginia.

Here, the Court places Brautigam’s sentence in the context of other long revocation sentences:

• Marlow P. – 50 years on revocation for relatively less severe violations (marijuana use and non‑compliance with treatment).
• Payne – 24 years on a third revocation, where the defendant engaged in prohibited internet usage, received pornography, and lied to probation—behaviors reminiscent of some of Brautigam’s misconduct.
• Roger G. – 10 years on revocation.

Against this backdrop, a 25‑year revocation prison term for a high‑risk sex offender with four revocations and a long record of escalating and deceptive violations is not out of step with sentences the Court has previously allowed. Hence, it is not objectively disproportionate under Wanstreet.

d. Notably, proportionality of the new supervised release term is not decided

The Court intentionally does not reach whether a 25‑year additional supervised release term would be constitutionally proportionate, because it vacates that term on statutory grounds. This leaves open, for a future case, whether long post‑revocation supervised release terms could themselves raise proportionality concerns in certain circumstances.

2. The Statutory Limit on Additional Supervised Release: Interpreting W. Va. Code § 62‑12‑26(j)

The opinion’s most novel and practically significant contribution is its interpretation of W. Va. Code § 62‑12‑26(j), now embodied in Syllabus Point 5 of Brautigam.

a. The statutory text

Current § 62‑12‑26(j) provides (substantively identical to prior § 62‑12‑26(i)):

When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of supervised release authorized under § 62‑12‑26(a) of this code, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of the term of supervised release shall not exceed the term of supervised release authorized by this section less any term of imprisonment that was imposed upon revocation of supervised release.

This provision does two distinct things:

1. Eligibility condition: A court may impose new supervised release only if the revocation imprisonment term is less than the maximum supervised release term authorized under § 62‑12‑26(a).
2. Quantitative limit: Any new supervised release term “shall not exceed” the authorized maximum “less any term of imprisonment that was imposed upon revocation of supervised release.”

b. Step 1 – Identify the “authorized term of supervised release”

For Brautigam, the “authorized term” under § 62‑12‑26(a) is 50 years, both:

• At the time of his original 2013 sentencing; and
• At the time of his fourth revocation in 2022.

This is not necessarily the length actually imposed (here, originally 25 years), but the statutory maximum permitted for his offense category.

Because the 25‑year revocation term is less than the 50‑year authorized supervised release term, the statute allowed the circuit court to consider imposing a new supervised release term. The statute gives the court discretion—it “may” impose such a term, but is not required to.

c. Step 2 – Determine what must be subtracted

The interpretive crux is the meaning of “less any term of imprisonment that was imposed upon revocation of supervised release.” The Court reads this language according to its plain terms:

• “Any term of imprisonment” means every prison term imposed as a result of any revocation of supervised release concerning these underlying offenses.
• “That was imposed upon revocation” includes:
  • The prison term imposed in the current (fourth) revocation; and
  • All prior revocation imprisonment terms (first, second, third revocations).

The Court expressly holds that the calculation must subtract:

• The instant revocation term (25 years); and
• All prior revocation terms (60 days + 2 years + 1 year),

from the 50‑year authorized supervised release term.

Crucially, the Court also clarifies what does not get subtracted:

• Time served on the underlying original prison sentence for the sex offenses.
• Credit applied by the revocation court toward prior custody on the underlying offense. In Brautigam’s case, the circuit court purported to give 5 years’ “credit” for time served on the underlying convictions, but the Supreme Court refuses to treat this as reducing the “term of imprisonment” imposed on the revocation for statutory purposes, noting there is no requirement in § 62‑12‑26 that such credit be granted at all.

In short, the statute creates a “budget” of 50 years that is reduced only by imprisonment terms imposed for supervised release revocations—not by original imprisonment or time successfully served on supervision.

d. The new rule: Syllabus Point 5

The Court crystallizes this interpretation in a new Syllabus Point:

To calculate the maximum amount of time a court may order as an additional term of supervised release after ordering a term of imprisonment upon a revocation, a court must first determine the authorized term of supervised release, then subtract any revocation term of imprisonment since the defendant's initial term of supervised release began. This calculation must subtract both the term of imprisonment on the instant revocation, as well as any previous terms of imprisonment resulting from supervised release revocations. W. Va. Code § 62‑12‑26(j) (eff. 2021).

This is the core doctrinal innovation of the case.

e. Application to Brautigam’s sentence

Applying its new rule, the Court finds error in how the circuit court set the additional 25‑year supervised release term:

• The statutory maximum authorized supervised release term was 50 years.
• Brautigam had already received four revocation imprisonment sentences:
  • First revocation: 60 days (about 0.16 years).
  • Second revocation: 2 years.
  • Third revocation: 1 year.
  • Fourth revocation: 25 years.

These revocation prison terms must be subtracted from 50 years to determine the maximum new supervised release term the court may impose. Instead, the circuit court imposed:

• 25 years’ imprisonment (fourth revocation), plus
• 25 years’ additional supervised release,

which, taken together, already equals 50 years—without accounting for the time previously imposed on earlier revocations. This contradicts § 62‑12‑26(j)’s requirement that the new supervised release term “shall not exceed” the maximum authorized “less any term of imprisonment that was imposed upon revocation.”

Thus, the Supreme Court vacates the supervised release portion and remands for resentencing, instructing the circuit court to:

• Recalculate the maximum permissible additional supervised release term by subtracting all revocation imprisonment terms from the 50‑year authorized maximum; and
• Impose a new supervised release term (if any) within that reduced maximum.

C. Impact and Practical Implications

1. For sentencing courts

Brautigam has direct, concrete implications for how circuit courts must structure sentences in supervised release revocation cases:

• Mandatory arithmetic. Courts must explicitly:
  1. Identify the maximum supervised release term authorized by § 62‑12‑26(a) for the underlying offense(s) (often up to 50 years for serious sex offenses).
  2. Determine all prior and current imprisonment terms imposed for any revocation of supervised release arising from the same underlying conviction(s) since supervised release began.
  3. Subtract the total of those revocation imprisonment terms from the authorized maximum to obtain the upper bound for any new supervised release term.
• No subtraction of underlying imprisonment. Time actually served on the original prison sentence does not reduce the supervised release “budget” under § 62‑12‑26(j).
• Discretion remains. Even where some supervised release time remains available, courts retain discretion to impose less than the maximum—or none at all—depending on the circumstances and the goals of supervision and public safety.

2. For defense counsel

Defense attorneys representing clients on supervised release revocations should:

• Calculate the remaining “supervised release budget” under § 62‑12‑26(j) as early as possible, especially in cases involving multiple prior revocations.
• Challenge any proposed supervised release term that, combined with prior revocation imprisonment, would exceed the statutory maximum.
• Recognize proportionality as a viable argument in extreme revocation sentencing cases, particularly where violations are relatively minor or technical, or where the proposed sentence is markedly out of line with similar cases.

3. For policymakers and courts generally

The decision underscores a tension inherent in supervised release regimes:

• On one hand, the Court is willing to uphold very long revocation prison sentences for sex offenders who repeatedly violate supervision conditions and present substantial public safety risks, emphasizing the breach‑of‑trust rationale.
• On the other, the legislature has clearly chosen to place a ceiling on the total punishment through the mechanism of supervised release by tying additional supervised release to a fixed maximum and requiring subtraction of revocation imprisonment.

Brautigam enforces that legislative ceiling, preventing courts from effectively using both long revocation imprisonment and full “fresh” supervised release terms as if each were independently unlimited.

V. Clarifying Complex Concepts

A. Supervised Release vs. Parole vs. Probation

• Probation is an alternative to incarceration; the defendant serves all or part of the sentence in the community, under court supervision, instead of going to prison.
• Parole is early release from prison, with supervision by a parole board, typically based on good behavior and risk assessment.
• Supervised release in West Virginia (for certain sex and violent offenses) is:
  • A mandatory, court‑ordered period of community supervision imposed in addition to any prison or probation term.
  • Part of the original criminal sentence, not a separate sentence imposed later.
  • Triggered automatically by statute for qualifying offenses under § 62‑12‑26(a).

B. “Breach of Trust” in the Revocation Context

When someone is on supervised release, the court has given them a conditional form of liberty: they are free from prison as long as they follow specific court‑ordered rules. When they violate these rules:

• The violation is not treated primarily as a new crime (even if the conduct could also be criminal);
• Instead, revocation imprisonment is viewed as a consequence of breaking the court’s trust—failing to abide by the conditions of that conditional liberty.

This is why revocation sentences are called a continuation of the original punishment rather than a new punishment: the defendant is still serving out the consequences of the original conviction, but in a more restrictive form (prison rather than conditional liberty).

C. Proportionality: Subjective and Objective Tests

• Subjective test (“shock the conscience”). The question is whether the sentence is so extreme, given the nature of the offender and the conduct, that it offends basic human dignity. This is a high bar, reserved for truly egregious mismatches between crime and punishment.
• Objective test (the Wanstreet factors). If the sentence passes the subjective test, courts may analyze:
  • The seriousness of the offense and the role of the punishment.
  • How similar offenses are punished in other states.
  • How other offenses are punished within West Virginia.
  The aim is to detect whether the sentence is grossly out of line with legislative choices and comparative practice.

D. Calculating the “Maximum Additional Supervised Release” Under § 62‑12‑26(j)

In practical terms, after Brautigam, a judge calculating a possible new supervised release term after revocation must follow this formula:

1. Identify the authorized maximum supervised release term for the underlying offense(s) under § 62‑12‑26(a) (for many sex offenses, up to 50 years).
2. Add up every term of imprisonment previously imposed for any revocation of supervised release in the case, including the term imposed at the current revocation.
3. Subtract the total from step 2 from the maximum in step 1; the result is the maximum remaining supervised release term the court may impose under § 62‑12‑26(j).

If the revocation imprisonment term alone already equals or exceeds the authorized maximum, no additional supervised release may be imposed.

VI. Conclusion

State v. Brautigam is significant in two principal respects:

1. It confirms the breadth of judicial discretion to impose severe revocation sentences for chronic, high‑risk violations of supervised release. A 25‑year prison term upon a fourth revocation for a sex offender with a history of non‑compliance, dishonesty, and dangerous behavior on supervision is held constitutionally sound under both the subjective and objective proportionality tests. The Court emphasizes the concepts of public protection, rehabilitation, and “breach of trust” as justifying such severity.
2. It clearly limits the total amount of supervised release a court may impose after revocation by enforcing the statutory subtraction rule of § 62‑12‑26(j). The new Syllabus Point 5 mandates that every revocation imprisonment term—past and present—must be subtracted from the authorized maximum supervised release term to determine the ceiling on any additional supervised release. The decision thus prevents courts from layering lengthy new supervision terms on top of substantial revocation imprisonment without regard to the statutory cap.

Going forward, Brautigam will serve as the leading authority in West Virginia on how to:

• Evaluate the proportionality of long revocation imprisonment sentences in supervised release cases; and
• Compute statutorily permissible additional supervised release terms under W. Va. Code § 62‑12‑26(j), especially in the context of repeated revocations.

The decision thus refines the balance between judicial discretion, constitutional proportionality, and legislative constraints in the supervision of high‑risk offenders.