                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                        FILED
                                                                               January 17, 2020
vs.) No. 18-0499 (Jefferson County 04-F-16)                                     EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Roger Riggs,
Defendant Below, Petitioner

                               MEMORANDUM DECISION

        Petitioner Roger Riggs, by counsel Jason M. Stedman, appeals the Circuit Court of
Jefferson County’s May 17, 2018, order revoking petitioner’s supervised release and sentencing
him to forty years of incarceration followed by ten years of supervised release. The State of
West Virginia, by counsel Caleb A. Ellis, filed a response. On appeal, petitioner argues that the
circuit court abused its discretion when it denied his motion to continue his revocation hearing.

        This Court has considered the parties’ briefs and the record on appeal. The facts and
legal arguments are adequately presented, and the decisional process would not be significantly
aided by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule
21 of the Rules of Appellate Procedure.

        On May 13, 2004, the circuit court sentenced petitioner to two concurrent terms of not
less than ten nor more than twenty years of incarceration for his two convictions of sexual abuse
by a parent, guardian, or custodian. The circuit court also sentenced petitioner to twenty-five
years of supervised release upon release from prison. On August 8, 2012, petitioner was
released from custody and placed on supervised release. Over the next several years, petitioner’s
supervised release was revoked multiple times and he was either reincarcerated or placed on
home incarceration before again being placed on supervised release. Further, the circuit court
increased petitioner’s initial supervised release term from twenty-five years to fifty years. On
April 30, 2018, the State filed its fifth petition to revoke petitioner’s supervised release, alleging
that he violated his home incarceration approximately 100 times, traveled to areas in close
proximity to children, and consorted with a known felon.

       On May 15, 2018, the circuit court held a hearing upon the petition to revoke petitioner’s
supervised release. At the beginning of the hearing, the following exchange took place:

               [The Court]: Okay. And, Mr. Stedman, are we in contest?



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        [Petitioner’s Counsel]: Your Honor, I was recently appointed at the end of
April to this, I’m brand new to this matter. I didn’t have any contact information
for Mr. Riggs. Today is the first day I’ve had an opportunity to speak with him.
Given that situation, I was able to interview him today. I’ve learned that he’s on
some medication and I think I need to look into that to make sure the Court can
make the most accurate determination.

       So at this point in time I would ask if the Court would consider a
continuance to give me more time to consult my client.

       ....

       [The Court]: Okay. What are the medical issues being raised?

        [Petitioner’s Counsel]: Your Honor. Apparently my client is on some
medication, possibly Zoloft as well as some other possible psychiatric medication.
I believe that I need to understand to have a better grasp of what that is. I’ve asked
him to tell me who his psychologist is, he doesn’t know. So I need to have an
opportunity to find out what his course of treatment is and effective medication.

        [The State]: Your Honor, I believe that the psychologist he sees is as a part
of his sex offender treatment and that would be Heidi Lucas.

       ....

        There might even be an extra list of the medications in the records that
were filed with the petition. I believe they were.

       ....

        Ms. Buckley when filing the petition did file attachments of those records
as well.

       [The Court]: Have you seen those, Mr. Stedman?

        [Petitioner’s Counsel]: I’ve been through all of the documents that were
provided. I believe I do have them but I need to review them and consider the
effects of the medication on Mr. Riggs.

        [The Court]: I’m going to inquire of your client, Mr. Stedman. It looks like
in the report from Behavioral Health Services in the case that your client is
prescribed Naltrexone, Metformin, Meloxicam, Lovastatin, Lisinopril, and
Flexitine. Can you inquire if there’s anything else that he’s prescribed that’s not
on the list?

       ...

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               [Petitioner]: Zoloft. Yeah.

        The circuit court then took a ten-minute recess to familiarize itself with the medications,
and directed petitioner to review the psychologist’s report from Behavioral Health Services of
Shenandoah Community Health previously provided by the State in discovery. After the recess,
the circuit court questioned petitioner, under oath, regarding his medications; his general
personal information like his age and address; his understanding of his prior convictions in 2004;
his understanding of the current proceedings, including the roles of his lawyer, his probation
officer, and the prosecutor; his recognition of friends and family members in the audience of the
courtroom; his general health care with his therapist and doctor, including his behavioral therapy;
and his general orientation of time and place. Upon questioning petitioner, the circuit court
remarked that he appeared to “know what he is doing, understands the situation” and that he
appeared “cognizant of where he is, time, place.” The circuit court concluded that it saw no
reason not to go forward with the revocation proceedings, and proceeded with the State’s
evidence.

        Below, the State produced two witnesses. Deputy T.G. Turner of the Berkeley County
Sheriff’s Department testified as to petitioner’s involvement with a felon. Probation Officer
Delaine Buckley testified that petitioner had over 100 different violations in his home
incarceration report for traveling to locations without prior permission. She further testified that
when confronted with the violations, petitioner admitted that his violations were “wrong” and
that he would not violate again. Lastly, she testified that petitioner’s GPS tracking device placed
petitioner near schools, in private residences, and at a hotel, and that he had traveled to these
locations without permission.

        Petitioner, through counsel, cross-examined the State’s two witnesses, made motions and
objections, and reviewed the State’s home incarceration reports admitted into evidence. In
closing, petitioner argued that the State could not prove a willful violation of the home
incarceration rules, and that “we might find out from further examination of his treatment
records that he might not understand certain consequences of his actions.” In response, the circuit
court stated, “I went through a fairly detailed list of questions to determine [petitioner’s] ability
to just understand some conversation. It was clear to me that he understood all of the questions
that I asked, birthday, social security, type of car he has, a little bit of family history.” Upon
finding petitioner competent, the circuit court revoked petitioner’s supervised release and
sentenced him to forty years of incarceration with ten years of supervised release. On May 17,
2018, the circuit court entered an order reflecting its decision. It is from this order petitioner now
appeals.

        On appeal, petitioner argues that the circuit court’s denial of his requested continuance
constituted a denial of his due process rights.1 In support, he claims that his opportunity to be


       1
         In support of this assignment of error, petitioner argues that he received ineffective
assistance of counsel, yet does not allege any conduct of his counsel to give rise to such a claim.
Petitioner assumes that speaking to a client for the first time on the same day as a hearing is per


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heard and to present witnesses and documentary evidence was violated when he was not
“afforded the opportunity to discuss matters with counsel because there was no client contact
until the day of the hearing.” Further, petitioner relies upon the principle that counsel must be
given sufficient time to adequately prepare to represent clients at trial. Specifically, petitioner
argues that counsel needed more time to “gauge [petitioner’s] level of understanding and
competency” as well as to “discuss [petitioner’s] version of events and if [he] had witnesses to
call at the hearing.”

       We have long held that

                [t]he granting of a continuance is a matter within the sound discretion of
       the trial court, though subject to review, and the refusal thereof is not ground for
       reversal unless it is made to appear that the court abused its discretion, and that its
       refusal has worked injury and prejudice to the rights of the party in whose behalf
       the motion was made.

Syl. Pt. 1, State v. Jones, 84 W. Va. 85, 99 S.E. 271 (1919). In determining whether a trial court
has abused its discretion in denying a continuance, the Court has explained that each case “must
be decided on a case-by-case basis in light of the factual circumstances presented, particularly
the reasons for the continuance that were presented to the trial court at the time the request was
denied.” Syl. Pt. 3, in part, State v. Bush, 163 W. Va. 168, 255 S.E.2d 539 (1979). “Where an
appellant neither alleges nor demonstrates any actual prejudice as a result of the trial court’s
refusal to grant a continuance, that refusal will not constitute reversible error.” Syl. Pt. 3, State v.
Andritto, 167 W. Va. 501, 280 S.E.2d 131 (1981).

       Regarding petitioner’s due process claim, we have held that




se ineffective assistance; however, he fails to elaborate on this argument. Petitioner further fails
to identify what actions counsel should or could have taken in light of petitioner’s admissions to
violating his home incarceration and the State’s overwhelming evidence against him.
Furthermore, this Court has held that

               [i]t is the extremely rare case when this Court will find ineffective
       assistance of counsel when such a charge is raised as an assignment of error on a
       direct appeal. The prudent defense counsel first develops the record regarding
       ineffective assistance of counsel in a habeas corpus proceeding before the lower
       court, and may then appeal if such relief is denied. This Court may then have a
       fully developed record on this issue upon which to more thoroughly review an
       ineffective assistance of counsel claim.

Syl. Pt. 10, State v. Triplett, 187 W. Va. 760, 421 S.E.2d 511 (1992). Accordingly, we decline to
address petitioner’s argument regarding the alleged ineffective assistance of his counsel on
appeal.


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               “[t]he final revocation proceeding required by the due process clause of
       the Fourteenth Amendment and necessitated by W.Va.Code, 62-12-10, as
       amended, must accord an accused with the following requisite minimal
       procedural protections: (1) written notice of the claimed violations of probation;
       (2) disclosure to the probationer of evidence against him; (3) opportunity to be
       heard in person and to present witnesses and documentary evidence; (4) the right
       to confront and cross-examine witnesses (unless the hearing officer specifically
       finds good cause for not allowing confrontation); (5) a ‘neutral and detached’
       hearing officer; [and] (6) a written statement by the fact-finders as to the evidence
       relied upon and reasons for revocation of probation.” Syl. pt. 12, Louk v. Haynes,
       159 W.Va. 482, 223 S.E.2d 780 (1976).

Syl. Pt. 2, State v. Brown, 215 W. Va. 664, 600 S.E.2d 561 (2004).

        Petitioner’s counsel stated that he interviewed petitioner prior to the revocation hearing
and reviewed the State’s petition and exhibits. The circuit court also held a recess to allow
petitioner and his counsel to discuss his case. On appeal, petitioner offers no explanation of how
his version of events leading to his revocation were any different than that offered into evidence
at the hearing below. Further, petitioner fails to show exactly what he was unable to prove to the
circuit court as he makes no suggestions of witnesses or other evidence that should have been
presented below. Petitioner also argues that “counsel was unable to consider the possibility of
clinical review by an expert to determine competency and the possible level of culpability.”
However, at the hearing, the circuit court took a short recess to allow petitioner and his counsel
more time to discuss his case and to review the psychologist’s report to determine if there were
any issues regarding his competency. Afterwards, petitioner did not argue that he felt that he was
incompetent or that the psychologist’s report was incorrect or insufficient in any way. The circuit
court questioned petitioner at length to determine if he seemed oriented to time and place,
understood the proceedings, and appeared competent. Petitioner answered the questions to the
circuit court’s satisfaction. Petitioner assumes that his medications automatically bring his
competency into question, yet he fails to argue that the circuit court’s finding of competency was
in any way incorrect. Under these facts, petitioner has simply failed to carry his burden of
affirmatively showing actual prejudice resulting from his denied continuance. As such, we find
no error in the circuit court’s denial of his motion for a continuance.

       For the foregoing reasons, we affirm the circuit court’s May 17, 2018, order.
                                                                                         Affirmed.

ISSUED: January 17, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

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