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W.Va. Supreme Court Hears McGill Appeal

December 25, 2012
By J.W. JOHNSON JR. Marshall County Bureau Chief , The Intelligencer / Wheeling News-Register

CHARLESTON - Two years after Michael McGill was sentenced on a conviction for an escape from custody charge, the West Virginia Supreme Court of Appeals partially reversed a decision by Marshall County Circuit Judge David W. Hummel.

McGill, 51, pleaded guilty in 2010 to one count of escape from custody. As part of the plea deal, a grand larceny charge was dropped after authorities consulted with representatives of the Lee Day Report Center, who determined an electronic monitoring bracelet McGill allegedly had cut off when escaping home confinement was, in fact, in working order.

McGill was on home confinement after he was charged with one count of malicious assault stemming from a 2009 incident in which he was accused of beating Michael Yoho, 52. Yoho was found dead June 14, 2009, more than a day after the alleged attack, following an apparent all-terrain vehicle crash. Marshall County Sheriff's Department investigators believe Yoho was brutally beaten by McGill at a camp and managed to drive away, only to wreck and die a short time later. The West Virginia Medical Examiner's Office determined Yoho's death to be a result of "compression asphyxia" and not directly from a beating.

McGill was placed on home confinement at his father's residence in Moundsville. Officers responded to that residence after the Moundsville Police Department was notified McGill's wife, Rebecca, had not reported to work one weekend. Upon arriving, officers discovered McGill's broken ankle monitoring bracelet. McGill was found days later at a camp on Fish Creek. More than 35 officers from different departments assisted U.S. marshals in catching McGill.

McGill was sentenced to three years in jail and ordered to pay $8,261.56 in restitution as compensation for the manpower and resources used in the search. His attorney, Robert McCoid, filed an appeal with the West Virginia Supreme Court, which returned a decision to uphold the sentence but remove the restitution portion.

Writing on behalf of the court, Justice Thomas E. McHugh said the appeal centered around McCoid's assertion that the circuit court lacked jurisdiction to impose a sentence on the charge of "escape from custody," because it implied McGill already had been convicted of a crime. McHugh wrote that the appeal raised the question that "a person on pre-trial bail is not truly in custody while on home confinement because restraint is not the result of conviction of any crime."

"The first matter, although couched as a jurisdictional issue, is nothing more than a creative attempt to have this Court examine an issue which was not properly preserved for appeal," McHugh wrote. "As the issue was not properly preserved for appeal, it bears no further consideration at this juncture."

However, the court ruled the issue of restitution was handled improperly by the circuit court, as the ruling was based on the assumption that law enforcement officers be presented as victims in the case.

"The code relates to the rights of direct victims of the crime - that is, individuals harmed directly by the criminal acts at issue - rather than society as a whole ... (it) speaks of crime victims as a distinctly different group from state and local government and the criminal justice system," he wrote.

Because of this, McGill will not be ordered to pay the more than $8,000 restitution, though he will continue to serve his three-year sentence. That sentence is running consecutively with a one-year sentence on a battery charge related to the Yoho case, in which a jury found McGill innocent of malicious assault.

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