Pretrial Home Incarceration Is “Custody” Under West Virginia’s Escape Statute

Commentary on State of West Virginia v. Corbett Maurice Carter, No. 23-277 (W. Va. Mar. 25, 2025)

Introduction

In State v. Carter, the Supreme Court of Appeals of West Virginia resolved a recurring question at the intersection of bail and custodial control: does pretrial home incarceration, imposed as a condition of bond with electronic monitoring, constitute “custody” for purposes of the felony escape statute, West Virginia Code § 61-5-10? The Court answered yes and affirmed the defendant’s conviction for felony escape after he cut his GPS bracelet and left his residence.

The decision formalizes, in a published opinion and a new syllabus point, a rule that had previously appeared only in a memorandum decision (State v. McGann). The Court’s holding has immediate implications for pretrial release practices, prosecutorial charging decisions, and defendant advisements across the state.

Parties:

• Respondent: State of West Virginia
• Petitioner: Corbett Maurice Carter
• Court: Supreme Court of Appeals of West Virginia
• Panel notes: Acting Chief Justice Bunn dissented and reserved the right to file a separate opinion; Justices Wooton and Trump were disqualified; Judges Sorsaia and Akers sat by temporary assignment.

Core issue: Whether a defendant on pretrial home incarceration as a condition of bond is in “custody” from which one can commit “escape” under § 61-5-10 when he leaves the residence and disables monitoring.

Summary of the Opinion

The Court (Justice Walker) affirmed Carter’s conviction for felony escape. It adopted a plain-meaning construction of “custody” in § 61-5-10 and held:

New syllabus point:

• When an individual charged with a felony or misdemeanor is placed on home incarceration as a condition of pretrial bond or bail, that individual is in “custody” for purposes of West Virginia Code § 61-5-10 (2000).

Applying this rule, the Court concluded that the Raleigh County Sheriff (through its Home Incarceration Division) exercised “charge and control” over Carter—requiring his physical confinement to the home, subjecting him to 24/7 GPS monitoring, unannounced visits, testing, and extensive behavioral rules—which satisfies “custody” as commonly understood. Carter’s act of cutting the bracelet and leaving without authorization was an escape from that custody.

The Court rejected three defense arguments: (1) that “release on bond” negates custody; (2) that the 1995 statutory addition of “alternative sentence confinement” limits the escape statute to postconviction settings; and (3) that prior caselaw distinguishing credit for time served on pretrial versus postconviction home incarceration means pretrial home confinement is noncustodial. The Court found each unpersuasive under the text, structure, and purpose of § 61-5-10.

Analysis

Precedents and Statutes Cited

• State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995) (Syl. Pt. 1): Establishes the sufficiency-of-the-evidence standard—whether any rational trier of fact could find the elements beyond a reasonable doubt, viewing evidence in the light most favorable to the State. Carter invoked “custody” as a matter of law; once the legal definition is set, the trial evidence (signed orders, monitoring rules, GPS records) easily satisfied the element.
• State v. Cottrill, 204 W. Va. 77, 511 S.E.2d 488 (1998) (Syl. Pt. 1, quoting Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995)): Pure issues of statutory interpretation are reviewed de novo. This framed the Court’s approach to defining “custody” in § 61-5-10.
• State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968) (Syl. Pts. 1–2): The plain-meaning rule—clear statutes are applied as written, without resort to interpretive canons. This principle anchored the Court’s reliance on ordinary dictionary definitions of "custody."
• State v. Sulick, 232 W. Va. 717, 753 S.E.2d 875 (2012); State ex rel. Cohen v. Manchin, 175 W. Va. 525, 336 S.E.2d 171 (1984); Miners in General Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941): When a statute is clear but a term is undefined, courts give it its common, ordinary meaning. The Court used Merriam-Webster and Black’s to define “custody” and “constructive custody.”
• State v. Allman, 240 W. Va. 383, 813 S.E.2d 36 (2018): Describes the purpose of escape statutes—to deter breaches of lawful custody and protect custodial authorities. The Court quoted Allman to emphasize that escape liability attaches to breaches of custody, not mere technical violations, and that protection extends equally to pretrial and postconviction custodial contexts.
• State v. Hughes, 197 W. Va. 518, 476 S.E.2d 189 (1996), and State v. McGuire, 207 W. Va. 459, 533 S.E.2d 685 (2000): Address credit for time spent on home incarceration. Hughes held that pretrial home incarceration does not automatically count as “time served” because it is not “the same as actual confinement in a jail,” and characterized the postconviction Home Incarceration Act as penal. The Court explained that the credit-for-time-served framework does not control the meaning of “custody” in the escape statute.
• State v. Jedediah C., 240 W. Va. 534, 814 S.E.2d 197 (2018): Notes the Legislature’s amendments making credit for time on home incarceration discretionary. Again, relevant to sentencing credit, not to the escape statute’s custody element.
• State v. McGann, No. 20-0329, 2021 WL 4936282 (W. Va. Sept. 27, 2021) (memorandum decision): Previously held that absconding from pretrial home incarceration is escape. Carter elevates that conclusion into a controlling, published syllabus point.
• West Virginia Code § 61-5-10 (2000): The escape statute. Post-1995 amendments broadened escape to cover departures from “the custody of a county sheriff, the director of the regional jail authority, [their] authorized representative[s], [and] a law-enforcement officer,” as well as “any institution, facility, or any alternative sentence confinement,” and make clear that escape applies when custody is “by virtue of a charge or conviction for a felony.”
• West Virginia Code § 62-1C-1a(a)(2)(C) (2021): Authorizes courts, as a condition of pretrial release, to require a defendant to “[p]articipate in home incarceration pursuant to § 62-11B-1 et seq.” This cross-reference is key: pretrial home incarceration here was “pursuant to” the Home Incarceration Act.
• West Virginia Code § 62-11B-1 et seq.: The Home Incarceration Act. Applies to adult offenders and provides the structure used by sheriffs’ home incarceration divisions; in Carter, the defendant’s pretrial home incarceration expressly operated through this framework.
• West Virginia Code § 62-11A-1, -1a: Statutes recognizing other sentencing alternatives, underscoring the Legislature’s broad scheme of custodial and semi-custodial regimes that § 61-5-10 protects.

Legal Reasoning

1) Plain meaning of “custody.” The escape statute does not define “custody.” Applying the plain-meaning rule (Elder), the Court adopted ordinary and legal dictionary definitions:

• Merriam-Webster: “immediate charge and control (as over a ward or a suspect) exercised by a person or an authority.”
• Black’s Law Dictionary: “the care and control of a thing or person for inspection, preservation, or security,” and “constructive custody” as control by legal authority without direct physical restraint (e.g., parole, probation).

The Court cataloged the Home Incarceration Division’s sweeping control over Carter: mandatory residence confinement, 24/7 GPS monitoring, unannounced home access, drug/alcohol testing, possession restrictions, communication requirements, third-party visitation limits, and the duty to obey supervisory instructions. That control, exercised by the Sheriff and his authorized representative, is “custody,” even if not jailhouse confinement.

2) Scope and structure of § 61-5-10. The 1995 overhaul expanded escape liability beyond brick-and-mortar incarceration to many custodial arrangements and officials, and the 2020 amendment further broadened coverage. The statute’s text now encompasses escape from “custody” of enumerated officials and from “any institution, facility, or any alternative sentence confinement,” without suggesting exclusion of pretrial regimes. Critically, the statute applies when custody exists “by virtue of a charge or conviction for a felony,” confirming it reaches both pretrial and postconviction custody.

3) Rejection of defense limiting theories.

• Bond means “release from custody” (Rule 46/Black’s bail definition): The Court declined to import the Rules of Criminal Procedure’s phrasing or a definition of “bail bond” to rewrite a statute. The Legislature’s word is “custody,” and its plain meaning controls. Being “on bond” does not negate being “in custody” for escape purposes when supervision entails legal control over movement and conduct.
• “Alternative sentence confinement” limits escape to postconviction: The 1995 amendments expanded coverage; they did not cabin it. The statute’s inclusion of custody “by virtue of a charge or conviction” defeats any postconviction-only reading.
• Time-credit precedents (Hughes, McGuire) show pretrial home incarceration is nonpunitive: Whether home incarceration earns sentence credit turns on different statutory policies (punishment and credit) than whether it constitutes “custody” for escape. Escape does not require that custody be “penal”; it requires legal control. Moreover, Carter’s pretrial home incarceration was “pursuant to” the Home Incarceration Act (§ 62-1C-1a(a)(2)(C)), reinforcing the custodial framework.

4) Purpose of escape statutes (Allman). The offense of escape deters breaches of lawful custody and protects custodial authorities in both pretrial and postconviction settings. Treating pretrial home incarceration as noncustodial would undercut that deterrent and carve an illogical loophole: identical conduct would be felony escape postconviction but not pretrial, despite equivalent control and public-safety concerns.

Application to the Evidence

Once “custody” is defined to include pretrial home incarceration:

• Lawful custody: The bond order and executed “Agreement to Comply With Rules of Supervision” placed Carter under the Home Incarceration Division’s control, overseen by the Sheriff’s authorized representative.
• Knowledge and notice: Carter signed documents acknowledging the rules and that unauthorized departure may be charged as “Escape.”
• Unauthorized departure: GPS data mapped his movements; the monitoring alert triggered upon cutting the bracelet; the device was recovered from a dumpster with the strap severed. These facts, if believed, allow a rational jury to find escape beyond a reasonable doubt.

Impact and Practical Implications

Carter sets binding statewide precedent through a new syllabus point and resolves any lingering uncertainty left by the McGann memorandum decision. Key consequences include:

• Charging and deterrence: Prosecutors may charge felony (or misdemeanor, depending on the underlying charge) escape when a pretrial home-incarcerated defendant absconds, tampers with monitoring, or breaches residence confinement. The availability of escape charges significantly increases the consequences of noncompliance.
• Bail practices: Judicial officers and sheriffs’ home incarceration units should expressly advise defendants that pretrial home incarceration constitutes “custody” and that unauthorized departures can result in escape charges in addition to bond revocation.
• Jury instructions and trial proof: Trial courts can instruct that pretrial home incarceration is legally “custody.” The State’s proof should include the bond order, the signed supervision agreement, and testimony from home incarceration officers about control, monitoring, and breaches.
• Defense counseling: Defense counsel should ensure clients understand that pretrial home incarceration is not a “soft” condition; violations risk new felony exposure independent of the underlying case.
• Legislative context: The decision harmonizes § 61-5-10’s text with § 62-1C-1a’s authorization of pretrial home incarceration “pursuant to” the Home Incarceration Act. Any future legislative refinements could codify a definition of “custody,” but Carter already supplies a clear judicial construction.

Complex Concepts Simplified

• Custody: Legal “charge and control” over a person by an authority. It can be physical (jail) or constructive (parole, probation, or home incarceration) when the person’s freedom is substantially controlled by legal authority.
• Escape (W. Va. Code § 61-5-10): Departing or attempting to depart “by any means” from lawful custody or confinement, whether that custody arises because the person is charged with or convicted of a felony (and separately addressed for misdemeanors).
• Home incarceration: A regime of confinement within a residence, often enforced by electronic monitoring and supervised by a sheriff or corrections authority, accompanied by rules about movement, visitors, substance use, and communications.
• Pretrial bond vs. postconviction sentencing: “Bond” secures a defendant’s appearance and may include restrictive conditions like home incarceration. “Postconviction” sanctions include sentencing alternatives (like home confinement) that are punitive. Carter holds that both settings can involve “custody” for escape purposes.
• Standards of review:
  • Sufficiency of evidence: Highly deferential to the jury—could any rational juror find the elements beyond a reasonable doubt?
  • Statutory interpretation: De novo—courts apply legislative text as written; undefined terms get their ordinary meaning.
• Syllabus points: In West Virginia appellate practice, new binding legal rules are often set out in numbered syllabus points at the beginning of the opinion. Carter’s new syllabus point declares pretrial home incarceration as “custody” for the escape statute.

Conclusion

State v. Carter cements a straightforward but consequential rule: pretrial home incarceration is “custody” under West Virginia’s escape statute. Grounded in the statute’s plain language, ordinary meaning, and the deterrent purpose of escape laws, the Court’s holding closes a potential loophole between pretrial and postconviction custodial regimes. The opinion aligns statutory text, modern supervisory practices, and public-safety interests, and it offers clear guidance to trial courts, custodial authorities, and litigants.

Key takeaways:

• New binding rule: Absconding from pretrial home incarceration can constitute felony escape.
• “Custody” is defined by legal control, not by the physical location of confinement.
• Credit-for-time-served doctrines do not determine the meaning of “custody” in the escape statute.
• Courts and sheriffs should ensure explicit advisements to defendants about escape exposure when imposing pretrial home incarceration.

With this decision, West Virginia’s law now clearly treats breaches of pretrial home confinement as breaches of custody, reinforcing compliance and providing a coherent framework for addressing violations in the pretrial context.