                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



State of West Virginia,                                                    FILED
Plaintiff Below, Respondent
                                                                      November 19, 2019
                                                                            released at 3:00 p.m.
vs) No. 18-0821 (Cabell County 14-F-70)                                 EDYTHE NASH GAISER, CLERK
                                                                        SUPREME COURT OF APPEALS
                                                                             OF WEST VIRGINIA
Michael A.,
Defendant Below, Petitioner



                              MEMORANDUM DECISION

       The petitioner, Michael A.,1 by counsel, Connor D. Robertson, appeals the August
24, 2018, final order of the Circuit Court of Cabell County revoking his probation and
imposing his original sentence of five to fifteen years in prison for his conviction by
Kennedy plea2 to the felony offense of incest. The respondent, State of West Virginia, by
counsel, Benjamin F. Yancey, III, filed a summary response in support of the circuit court’s
order.

        This Court has considered the parties’ briefs, oral arguments, and the appendix
record on appeal. Upon review of the applicable authorities, this Court finds that the circuit
court erred by failing to afford the petitioner a final evidentiary probation revocation
hearing. Accordingly, we must vacate the circuit court’s final order and remand this case
for a new hearing. Because our decision is dictated by well-settled law, this case satisfies
the “limited circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure
and is, therefore, appropriate for disposition by memorandum decision.

       On August 7, 2017, the petitioner entered a Kennedy plea of guilty to the felony
offense of incest. Thereafter, the petitioner was sentenced to not less than five and no more
than fifteen years in the penitentiary for his conviction. However, the circuit court
suspended the petitioner’s sentence and placed him on probation for a period of five years

       1
         In cases involving sensitive facts, we use initials where necessary to protect the
identities of those involved in the case. See W.Va. R. App. Proc. 40(e); see also State v.
Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
       2
           See Kennedy v. Frazier, 178 W.Va. 10, 357 S.E.2d 43 (1987).
                                              1
with a special condition of home confinement. The circuit court also ordered the petitioner
to serve a period of fifty years of supervised release upon the expiration of the sentence
being served on probation.

        On April 25, 2018, the petitioner’s probation officer observed that the petitioner’s
girlfriend, J.H., had a black eye. J.H. also had a black eye two months earlier, and the
probation officer suspected that the petitioner had caused her injuries. However, when the
probation officer confronted the petitioner, he denied striking his girlfriend. The probation
officer then told the petitioner that he was putting him in jail for five days so he would have
time to “think” about whether he was going to be honest about hitting J.H.3 According to
the probation officer, he told the petitioner that if he was honest, he would continue to work
with him. Otherwise, he would schedule a polygraph4 and if the results indicated the
petitioner was lying, then he would take action to have the petitioner’s probation revoked.
Two days later, while incarcerated, the petitioner admitted to his probation officer that he
hit J.H and caused her black eye.

        Upon receiving the petitioner’s admission, the probation officer contacted the
petitioner’s sex offender counselor at Daysprings Counseling Services and informed him
that the petitioner was incarcerated and had admitted to striking his girlfriend. The
probation officer was then told by the counselor that the petitioner was being discharged
from the Daysprings program because he had struck J.H. and because of “his overall
attitude and lack of progress in treatment.” The petitioner’s counselor stated that the
petitioner’s actions toward J.H. showed his “lack of motivation for change.” The counselor
also reported that the petitioner had not fully assumed responsibility for his actions that led
to his conviction and had actually “blame[d] his victim for taking advantage of him when
he was drunk.”

       Because the petitioner was discharged from the Daysprings program, the probation
officer could not release the petitioner from incarceration. West Virginia Code § 62-12-2
(2006) requires sex offender counseling for a person convicted of a sexual offense as a
condition of release on probation. Accordingly, the State filed a motion to revoke the
petitioner’s probation on May 1, 2018.5

       3
         The petitioner has not challenged his probation officer’s authority to place him in
jail under these circumstances.
       4
        The petitioner was required to submit to polygraph examinations as a condition of
his probation. See W.Va. Code § 62-11D-2 (2006).
       5
         The petition to revoke the petitioner’s probation alleged that he violated seven
conditions of his probation. In particular, the State alleged that the petitioner violated the
law by striking J.H.; lied to his probation officer when he initially denied striking J.H.; was
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        On May 14, 2018, the petitioner appeared before the circuit court for a preliminary
hearing on the motion to revoke his probation. The probation officer testified about the
circumstances that led to the petitioner’s incarceration and the motion to revoke his
probation. The probation officer explained that it had been his intention to release the
petitioner from jail after five days regardless of whether he admitted to striking his
girlfriend. The probation officer stated that he planned to enroll the petitioner in a batterer’s
intervention program after he admitted to striking J.H. However, the probation officer was
unable to release the petitioner from incarceration because he was discharged from his sex
offender counseling program. Based on the probation officer’s testimony, the circuit court
found probable cause to revoke the petitioner’s probation. Accordingly, a final probation
revocation hearing was scheduled.

       Prior to his final probation revocation hearing, the petitioner filed a motion to
suppress his statement to his probation officer about hitting his girlfriend. The petitioner
claimed his admission was coerced by his probation officer’s “false promise” to release
him from incarceration. The petitioner also filed an alternative motion for enrollment in a
new sex offender treatment program because his probation officer testified at the
preliminary hearing that he would not have sought to revoke the petitioner’s probation if
he had not been discharged from the Daysprings program. In its response, the State argued
that the petitioner’s admission was voluntary because the probation officer told the
petitioner before he was placed in custody that he would be released from jail in five days
regardless of whether he admitted to striking J.H. The State further asserted that the
petitioner’s discharge from the Daysprings program could not be remedied by a substitute
counseling service.

        On July 16, 2018, the petitioner appeared before the circuit court judge that
sentenced him in 2017 for a final probation revocation hearing. The circuit court first
considered the motion to suppress and asked the petitioner’s counsel to summarize his
argument for suppressing the petitioner’s statement. The State then offered argument in
response, and the petitioner’s counsel gave a reply. Thereafter, the circuit court found the
petitioner’s statement to his probation officer was voluntary and immediately proceeded to
revoke the petitioner’s probation and impose his original sentence of five to fifteen years
in prison. The petitioner was not permitted to put forth any evidence even though he
indicated that he had witnesses waiting to testify and other documentary evidence to
present to the court. In refusing to allow the petitioner to present his evidence, the court
stated that it had reviewed the preliminary hearing testimony and was sufficiently familiar

discharged from his sex offender treatment program; failed to pay drug screen fees; failed
to pay supervision fees; failed to pay community correction fees; and failed to pay the cost
of his prosecution. The petitioner’s probation officer testified during the preliminary
hearing that he would not have sought to revoke the petitioner’s probation solely because
of his nonpayment of fees and costs.
                                               3
with the facts and allegations. Upon entry of the order revoking his probation, the
petitioner filed this appeal.

       This Court has held that “[a] probation revocation may be reviewed either by a direct
appeal or by a writ of habeas corpus.” Syl. Pt. 1, State v. Ketchum, 169 W.Va. 9, 289 S.E.2d
657 (1981).

                     When reviewing the findings of fact and conclusions of
              law of a circuit court sentencing a defendant following a
              revocation of probation, we apply a three-pronged standard of
              review. We review the decision on the probation revocation
              motion under an abuse of discretion standard; the underlying
              facts are reviewed under a clearly erroneous standard; and
              questions of law and interpretations of statutes and rules are
              subject to a de novo review.

Syl. Pt. 1, State v. Duke, 200 W.Va. 356, 489 S.E.2d 738 (1997).

        The petitioner’s primary assignment of error concerns the circuit court’s refusal to
allow him to present evidence at his final hearing on the State’s motion to revoke his
probation. In syllabus point nine of State v. Louk, 159 W.Va. 482, 223 S.E.2d 780 (1976),
this Court held that “[a] person who is arrested for violating his conditions of probation is
entitled to a preliminary and a final revocation hearing.” With respect to the final
revocation hearing, this Court described the proceeding as “more detailed . . . because the
ultimate decision there is whether to revoke a probation rather than merely determining the
existence of probable cause for revocation.” Id. at 497, 223 S.E.2d at 790. To ensure that
a person subject to probation revocation is afforded the requisite due process, this Court
held in syllabus point twelve of Louk that

                     [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; (6) a written
              statement by the fact-finders as to the evidence relied upon and
              reasons for revocation of probation.


                                             4
See also W.Va. R. Crim. Proc. 32.1(a)(2).

        In this case, the petitioner appeared before the circuit court on July 16, 2018, for a
final probation revocation hearing but was denied the opportunity to be heard in person
and to present witnesses and documentary evidence. As discussed above, the record shows
that after the parties presented their arguments with regard to the petitioner’s motion to
suppress the statement he gave to his probation officer, the court ruled that the petitioner’s
statement was given voluntarily and immediately proceeded to find the evidence sufficient
to revoke the petitioner’s probation and impose his original sentence. Although the
petitioner indicated that he had witnesses ready to testify, the court refused to allow the
petitioner to be heard and present his evidence. Because the petitioner was clearly denied
a final evidentiary probation revocation hearing in accordance with Louk, we must vacate
the August 24, 2018, order of the circuit court and remand this case for a final evidentiary
probation revocation hearing.6

        Therefore, for the reasons set forth above, the final order of the Circuit Court of
Cabell County entered on August 24, 2018, is vacated, and this case is remanded to the
circuit court for a final probation revocation hearing in accordance with this decision.7

                                                                      Vacated and remanded.




       6
         The petitioner also asserted error because the circuit court denied his motion to
suppress without allowing him to present testimony regarding the voluntariness of his
statement to his probation officer. Upon remand, the circuit court should permit the
petitioner to present his evidence in support of his motion to suppress at the final
evidentiary probation revocation hearing. We note, however, that such statements are
generally admissible. See Syl. Pt. 2, Hughes v. Gwinn, 170 W.Va. 87, 290 S.E.2d 5 (1982)
(“Statements by a probationer, obtained by probation officers without first advising the
probationer of his rights as prescribed under Miranda, are admissible in probation
revocation proceedings.”).
       7
          At the conclusion of his brief, the petitioner requests “the special assignment of a
neutral and detached circuit judge to preside over the hearing.” Because this is a matter of
judicial recusal and disqualification that is within the sole discretion of the Chief Justice of
this Court, it is not properly before this Court and we decline to address it. See State ex
rel. Pritt v. Vickers, 214 W.Va. 221, 222 n.1, 588 S.E.2d 210, 211 n.1 (2003); W.Va. Tr.
Ct. R. 17.01 (outlining procedure for motions to disqualify presiding judge).
                                               5
ISSUED: November 19, 2019

CONCURRED IN BY:

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




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