           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                   January 2013 Term
                                   _______________                            FILED
                                                                             May 17, 2013
                                                                         released at 3:00 p.m.
                                      No. 11-0977                      RORY L. PERRY II, CLERK
                                                                     SUPREME COURT OF APPEALS
                                    _______________                       OF WEST VIRGINIA


                             STATE OF WEST VIRGINIA,

                                     Petitioner


                                            v.

                                 ELLIOT FITZSIMMONS,

                                      Respondent


       ____________________________________________________________

                      Appeal from the Circuit Court of Ohio County

                        The Honorable Arthur M. Recht, Judge

                                   Case No. 10-F-54


                 Affirmed in Part, Reversed in Part, and Remanded

       ____________________________________________________________

                                 Submitted: April 9, 2013

                                   Filed: May 17, 2013



Gerald G. Jacovetty, Jr., Esq.                   Patrick Morrisey, Esq.
Wheeling, West Virginia                          Attorney General
Counsel for the Petitioner                       Laura Young, Esq.
                                                 Assistant Attorney General
                                                 Charleston, West Virginia
                                                 Counsel for the Respondent



The Opinion of the Court was delivered PER CURIAM.
                              SYLLABUS BY THE COURT



              1.     “In reviewing challenges to findings and rulings made by a circuit

court, we apply a two-pronged deferential standard of review. We review the rulings of

the circuit court concerning a new trial and its conclusion as to the existence of reversible

error under an abuse of discretion standard, and we review the circuit court’s underlying

factual findings under a clearly erroneous standard. Questions of law are subject to a de

novo review.” Syllabus Point 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).



              2.     “It is a violation of the Double Jeopardy Clause of the West Virginia

Constitution, Article III, Section 5, to fail to credit the time served at a detention center

under W.Va.Code, 25-4-6, when pursuant to this section a prisoner is found unfit to

remain at a detention center, is returned to the court which committed him, and is

sentenced for the crime for which he has been convicted.” Syllabus Point 2, State v.

Hersman, 161 W. Va. 371, 242 S.E.2d 559 (1992).




                                              i
Per Curiam:

              The instant case is before the Court upon the appeal of Petitioner, Elliot

Fitzsimmons, from a May 16, 2011, order of the Circuit Court of Ohio County which

denied Petitioner’s request for a continuance and for discovery, upheld the expulsion of

the Petitioner from the program at the Anthony Center for Youthful Offenders, and

denied Petitioner’s motion for credit for time served at the Anthony Center. In this

appeal, Petitioner alleges that the circuit court erred in denying the request of the

Petitioner for a continuance of the April 28, 2011, evidentiary hearing so that discovery

could be conducted; in upholding the decision of the warden finding Petitioner unfit for

the Anthony Center facility; and in denying his request that he be given credit for time

served. Upon examination of the parties’ briefs, the submitted appendices, and the

arguments of counsel, this Court concludes that the circuit court did not err in denying

Petitioner’s motion for continuance and discovery and in upholding the warden’s

decision to expel the Petitioner from the Anthony Center Youthful Offenders Program.

However, we determine that the circuit court erroneously denied the Petitioner’s request

for credit for time served. Accordingly, as explained more thoroughly below, we affirm

in part, and reverse in part, the May 16, 2011, order of the circuit court and remand this

matter for further proceedings consistent with this Opinion.




                                            1

                                            I.


                 FACTUAL AND PROCEDURAL BACKGROUND


             On or about May 10, 2010, Petitioner was indicted by the Ohio County,

West Virginia Grand Jury through a four-count Indictment charging him with one count

of entering without breaking, one count of conspiracy, one count of burglary and one

count of grand larceny. On July 26, 2010, Petitioner entered a plea of guilty to Count 1

of the Indictment which charged “Entering Without Breaking.” Paragraph 3 of the plea

agreement stated that the Petitioner’s sentence of one to ten years in the penitentiary

would be suspended in lieu of his being placed at the Anthony Center for Youthful

Offenders. The Petitioner was sentenced on August 9, 2010, to not less than one nor

more than ten years for the entering without breaking conviction. The court thereafter

suspended the sentence and ordered the Petitioner to be placed at the Anthony Center and

dismissed the Petitioner’s remaining charges. Petitioner was placed at the Anthony

Center on August 11, 2010.



             Following a lengthy string of institutional violations, the Multidisciplinary

Unit Team at the Anthony Center reviewed the Petitioner’s file. Shortly thereafter, based

upon the review, the warden determined that the Petitioner was unfit to continue his

placement at that facility. On February 11, 2011, an order was entered by the circuit

court transferring Petitioner from the Anthony Center and returning him to the West

Virginia Northern Regional Jail. The basis of the warden’s termination of the Petitioner’s


                                            2

placement in the Anthony Center Youthful Offenders Program was multiple write-ups.

On February 14, 2011, Anthony Center Associate Warden of Security, Mark Wegman,

issued a report detailing the Petitioner’s disciplinary violations. In the report, eighteen

violations were listed including ten instances of “Refusing an Order,” one instance of

“Insubordination/Insolence,” one instance of “Creating a Disturbance,” one instance of

“Contraband,” two instances of “Unauthorized Communication,” one instance of

“Bucking Line,” one instance of “Fraudulent Representation,” and one instance of

“Attentiveness.”



                Thereupon, the circuit court scheduled a hearing for April 28, 2011, as

required by West Virginia Code § 25-4-6,1 to determine if the warden abused his


1
    West Virginia Code 25-4-6 (2011) provides, in pertinent part,

               If, in the opinion of the warden, the young adult offender is
               an unfit person to remain in the center, the offender shall be
               returned to the committing court to be dealt with further
               according to law. The offender is entitled to a hearing before
               the committing court to review the warden's determination.
               The standard for review is whether the warden, considering
               the offender’s overall record at the center and the offender’s
               compliance with the center’s rules, policies, procedures,
               programs and services, abused his or her discretion in
               determining that the offender is an unfit person to remain in
               the center. At the hearing before the committing court, the
               state need not offer independent proof of the offender’s
               disciplinary infractions contained in the record of the center
               when opportunity for an administrative hearing on those
               infractions was previously made available at the institution. If
               the court upholds the warden’s determination, the court may
               sentence the offender for the crime for which the offender
(continued . . .)
                                              3

discretion in removing the Petitioner from the Anthony Center.                Prior to the

commencement of that hearing, defense counsel filed a motion on behalf of the Petitioner

requesting a continuance of the April 28, 2011, hearing. The motion was filed on the

ground that counsel was in need of discovery in order to effectively defend the Petitioner.

The Court denied the continuance motion and the hearing went forward.



              Associate Warden Wegman appeared via telephone at the hearing. Mr.

Wegman testified that the Petitioner had eighteen violations as outlined in his previous

report.   Mr. Wegman also testified that the West Virginia Division of Corrections

magistrate had held hearings on all of the Petitioner’s previous write-ups.               The

Petitioner’s counsel was given the opportunity to cross-examine Mr. Wegman. The

Petitioner testified at the hearing that he was given a “good opportunity to be heard.”



              Upon conclusion of the hearing, the circuit court upheld the decision of the

warden terminating the Petitioner’s placement at the Anthony Center, reinstated the one

to ten year prison sentence, and ordered that the Petitioner not be given any credit

towards the one to ten-year prison sentence for the time served at the Anthony Center.

Thereafter, the Petitioner filed a Motion for Relief from Judgment for Credit for Time




              was convicted. In his or her discretion, the judge may allow
              the defendant credit on the sentence for time the offender
              spent in the center.


                                             4
Served on May 4, 2011. The circuit court entered an order denying the Motion for Relief

on that same day.




                                           II.


                              STANDARD OF REVIEW


             With regard to the applicable standard of review upon appeal, this Court

has held,

             In reviewing challenges to findings and rulings made by a
             circuit court, we apply a two-pronged deferential standard of
             review. We review the rulings of the circuit court concerning
             a new trial and its conclusion as to the existence of reversible
             error under an abuse of discretion standard, and we review the
             circuit court’s underlying factual findings under a clearly
             erroneous standard. Questions of law are subject to a de novo
             review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).



                                           III.


                                      ANALYSIS



             In his first assignment of error, the Petitioner alleges that the circuit court

erred in not granting his motion for discovery and continuance of the hearing. Prior to

the hearing, the Petitioner filed a motion for discovery requesting “any and all books,

manuals, rules, regulations and/or any and all other documents regarding inmates’

conduct and/or discipline when staying at the Anthony Center.” The Petitioner also


                                            5

requested an extension of time based on the discovery request. Both motions were

denied by the circuit court. The Petitioner asserts that he should have been provided an

opportunity for discovery under Rule 16 of the West Virginia Rules of Criminal

Procedure since it was a criminal hearing to which the Rules of Criminal Procedure

applied.2    He asserts that the hearing should have been continued to allow defense

counsel the opportunity to appropriately review the documents and use them in the

hearing if necessary.



                Conversely, the State argues that West Virginia Code § 25-4-6 governs the

removal of a youthful offender from the Anthony Center, and that the Rules of Criminal

Procedure do not apply, as this is not a “criminal proceeding” as defined by Rule 54(c) of




2
    Rule 16 of the West Virginia Rules of Criminal Procedure provides, in pertinent part,

            (a) Disclosure of Evidence by the State.

            (1) Information Subject to Disclosure.

                (C) Documents and Tangible Objects. Upon request of the
                defendant, the state shall permit the defendant to inspect and
                copy or photograph books, papers, documents, photographs,
                tangible objects, buildings or places, or copies or portions
                thereof, which are within the possession, custody and control
                of the state, and which are material to the preparation of the
                defense or are intended for use by the state as evidence in
                chief at the trial, or were obtained from or belong to the
                defendant.


                                              6

the West Virginia Rules of Criminal Procedure.3 The State argues that the hearing was

simply a judicial review under the abuse of discretion standard.4 Moreover, the State

contends that discovery rules are specifically inapplicable under West Virginia Code §

25-4-6, which provides that the State “does not have to offer independent proof of the

offender’s infractions if the offender had the opportunity for administrative hearings on

those infractions.” The State maintains that the hearing was merely to determine if

Petitioner was given the required administrative hearings.



                In conducting the hearing in this case pursuant to West Virginia Code §25­

4-6, the circuit court had a limited standard of review. The statutory standard of review is

“whether the warden, considering the offender’s overall record at the center and the

offender’s compliance with the center’s rules, policies, procedures, programs and

services, abused his or her discretion in determining that the offender is an unfit person to

remain in the center.” The statute goes on to provide that “the state need not offer

independent proof of the offender’s disciplinary infractions contained in the record of the


3
  As it concerns the circuit courts of West Virginia and the West Virginia Rules of
Criminal Procedure, Rule 1 states, in pertinent part: “These rules govern procedure in all
criminal proceedings in the circuit courts of West Virginia, as defined in Rule 54(c).”
Rule 54(c)(5) of the West Virginia Rules of Criminal Procedure states, “Circuit Court
includes all courts in this state having jurisdiction pursuant to Article 8, Section 6 of the
Constitution of West Virginia.”
4
    See footnote 1, supra.




                                             7

center when opportunity for an administrative hearing on those infractions was

previously made available at the institution.” See W. Va. Code § 25-4-6. In this case, the

purpose of the hearing was to confirm that the Petitioner was previously provided with

the opportunity to address the violations before a magistrate, that the magistrate

determined that the violations were valid, and that the warden did not abuse his discretion

in reviewing the Petitioner’s overall record and determining him unfit to remain at the

Anthony Center. The purpose of the hearing was not to re-determine the validity of the

Petitioner’s violations.



              Prior to the April 28, 2011, hearing, the Petitioner had been provided with

hearings before a magistrate for each of his eighteen violations. At these hearings, the

Petitioner was provided with the opportunity to give his version of the events. The

hearing held before the circuit court on April 28, 2011, pursuant to West Virginia Code §

25-4-6, was simply a judicial review of the administrative hearings below.          At the

hearing, the associate warden testified that the Petitioner was previously provided with

hearings before a magistrate on each of his eighteen institutional violations. Therefore,

the circuit court did not err in denying the Petitioner’s motion for discovery and the

request for a continuance.



              Under these same misapprehensions, the Petitioner next contends that the

circuit court erred when it upheld the Anthony Center warden’s ruling that the Petitioner

was an unfit person to remain at the Center in the youthful offender program. He asserts

                                            8

that the circuit court erred because its focus in the hearing was incorrect and that it did

not properly review the basis of the Petitioner’s write-ups to determine if the warden’s

reliance upon them, as a basis for the warden’s decision, was an abuse of his discretion.

Rather, the circuit court focused on whether the Petitioner had been provided an

administrative hearing on each of the write-ups with an opportunity to address each of

them. For the reasons discussed above, we find that the Petitioner’s argument has no

merit.



              As we previously stated, the State is not required to offer independent proof

of the offender’s disciplinary infractions when opportunity for administrative hearings on

those infractions was previously made available. See W. Va. Code § 25-4-6. Here, the

circuit court heard testimony that the Petitioner was previously provided with the

opportunity to address the violations before a magistrate and the magistrate determined

the violations were valid.    Therefore, we find that the circuit court did not err in

upholding the warden’s determination to expel the Petitioner from the Anthony Center.



              Lastly, the Petitioner argues that the circuit court erred in denying him

credit for time served while at the Anthony Center. The Petitioner argues that the denial

of credit for time served deprives him of constitutional rights under the Double Jeopardy

and Equal Protection Clauses of the West Virginia Constitution.           He asserts that

placement at the Anthony Center is actually incarceration at a West Virginia Department

of Corrections facility which triggers constitutional rights that mandate that credit be

                                            9

given for time served toward the jail sentence that was re-instated after his dismissal from

the youthful offender program.



                In State v. Hersman, 161 W. Va. 371, 242 S.E.2d 559 (1992), this Court

addressed this very issue. We held the following in syllabus point 2:

         It is a violation of the Double Jeopardy Clause of the West Virginia
         Constitution, Article III, Section 5, to fail to credit the time served at a
         detention center under W.Va.Code, 25-4-6, when pursuant to this section a
         prisoner is found unfit to remain at a detention center, is returned to the
         court which committed him, and is sentenced for the crime for which he has
         been convicted.

In so deciding, we acknowledged the discretion given to the judge in West Virginia Code

§25-4-6, which states that “in his or her discretion, the judge may allow the defendant

credit on the sentence for time the offender spent in the center,” but stated that,

                [i]n Conner [v. Griffith, 160 W. Va. 680, 238 S.E.2d 529
                (1977)], we noted that it was not necessary to declare the
                statute involved unconstitutional. What was required was to
                apply it in a constitutional manner. 238 S.E.2d at 534, n. 18.
                Here, the same result is reached and W.Va.Code, 25-4-6,
                must be applied in a constitutional fashion by giving credit
                for the time spent at a detention center, once the youthful
                male offender is declared unfit and the court determines to
                impose the sentence on the underlying crime for which he has
                been convicted.

Id. at 376, 242 S.E.2d at 561. Therefore, pursuant to Hersman, we find that the circuit

court erred in denying the Petitioner credit for time served at the Anthony Center.5


5
    The State likewise concedes error on this issue.


                                              10

Accordingly, we remand this matter to the circuit court for entry of a sentencing order

crediting the Petitioner with time served.



                                             IV.


                                     CONCLUSION


              For the foregoing reasons, we affirm, in part, and reverse, in part, the May

16, 2011, order of the circuit court and remand this matter for entry of an order granting

the Petitioner credit for time served at the Anthony Center.



                                      Affirmed, in Part, Reversed, in Part, and Remanded.




                                             11

