No. 17-0276 – State of West Virginia v. Donald P. Cookman
                                                                                    FILED
                                                                                 April 27, 2018
                                                                                 released at 3:00 p.m.
LOUGHRY, Justice, dissenting:                                                EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA 




              I would affirm the circuit court’s March 21, 2017, order that ruled that the

petitioner must serve the remainder of his new five-year probationary period. It is clear

from the record that the petitioner’s new five-year period was not an extension of his

original probation, but rather a separate and distinct sentence. As such, the petitioner’s

probationary period does not exceed the statutory limit set forth in West Virginia Code §

62-12-11.



              At the hearing on the revocation of the petitioner’s original period of

probation, the petitioner’s attorney stated as follows:

              [W]e are in agreement that the Court can find that [the
              petitioner was required to pay full restitution prior to the
              expiration of his probation] and that has not been satisfied. It
              was a condition of the original probation and that he has
              complied with all other conditions of his probation according
              to the State and to his probation officer, but because of the
              full restitution issue the Court would revoke his probation,
              sentence him to the suspended sentence – one-year sentence
              for one of the suspended sentences. Then we are going to
              move for a motion to – make a motion to reconsider. The
              Court would grant that motion and place Mr. Cookman on
              another term of probation of five years with the understanding
              that if he makes full restitution prior to that time, the Court
              would entertain a petition to early terminate his probation,
              and also that he would continue to make payments at a
              minimum of 20 percent of his gross earnings during the
              extended period of his probation.

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It is evident that the petitioner intended to have his original probation revoked, to be

sentenced, and then for the circuit court to reconsider the sentence and place the

petitioner on probation. To that end, the circuit court’s April 1, 2016, order

              revoke[d] Defendant’s supervised probation and sentence[d]
              the Defendant to a term of incarceration. That the Defendant
              would move the Court to suspend imposition of Defendant’s
              sentence upon his second conviction for Petit Larceny.
              Specifically, that the remainder of Defendant’s one (1) year
              determinate jail sentence, for the second Petit Larceny
              conviction, be suspended. Furthermore, Defendant would
              tender to the Court payment in the amount of $53,748.40,
              making the total paid to the victims to date $170,498.40,
              leaving $118,497.20 to be paid.

Significantly, the petitioner’s original probationary period was revoked. Only after the

revocation did the circuit court grant a new, independent, and discrete probationary

period to the petitioner. As a result, the new five-year period of probation was not an

unlawful extension of his original period of probation under West Virginia Code § 62-12-

11, but rather a separate and distinct sentence.



              By ignoring the record of the proceedings below, the majority has allowed

the petitioner to manipulate our justice system. Notably, the petitioner’s plea agreement

provided that he would make full restitution to the victims of his crimes. The petitioner

failed to pay full restitution during his original five-year probationary period. He then

requested the circuit court to grant him a new five-year probationary period in lieu of

incarceration in order to continue paying restitution. Upon receiving a new five-year

probationary period that he requested, the petitioner immediately challenged the


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probationary period as being in violation of our law. Such legal gamesmanship should not

be permitted, especially at the expense of the victims of the petitioner’s crimes. For these

reasons, I would affirm the circuit court’s order. Accordingly, I respectfully dissent.




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