                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Petitioner Below, Respondent                                                   May 18, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0221 (Morgan County 13-M-AP-04)                                     OF WEST VIRGINIA


Lewis J. Hendershot Jr.,
Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Lewis J. Hendershot, by counsel William B. Carey, appeals the Circuit Court
of Morgan County’s January 06, 2014, order, denying his appeal from a probation revocation.
The State, by counsel Laura J. Young, filed a response. On appeal, petitioner alleges that the
circuit court erred in revoking his probation due to his physical limitations, in admitting certain
evidence, and making findings regarding his physical abilities.

       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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        In March of 2012, petitioner was charged with domestic battery in the Magistrate Court
of Morgan County. In September of 2012, petitioner, pursuant to a plea agreement, pled guilty to
violating an emergency protective order and destruction of property. Petitioner was sentenced to
twenty-four hours in the Eastern Regional Jail for the offense of violating the protective order
and to a six month sentence for the offense of destruction of property. The sentences were
suspended in favor of one year unsupervised probation, with a term and condition of probation
that petitioner complete the batterer’s intervention program and have no further violations of the
law for one year.

       In May of 2013, petitioner failed to complete the batterer’s intervention program and was
ordered to serve community service.1 The community service was to be completed by August 24,
2013. However, according to an incident report dated May 19, 2013, petitioner was sent home
from community service because of his failure to cooperate and did not return until August 31,

       1
        According to the record, petitioner was asked to leave the batterers intervention program
because he refused to acknowledge that he perpetrated any domestic violence and refused to
cooperate fully in the program.
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2013. Petitioner did not communicate with the community service supervisor between May and
August. Additionally, petitioner did not report back for community service until after the
completion deadline passed.

        In September of 2013, the State filed a motion to revoke petitioner’s probation because
he failed to complete community service. On September 27, 2013, the magistrate court held a
hearing on that motion and after hearing testimony, reimposed the original sentence. In October
of 2013, petitioner began his incarceration at the Eastern Regional Jail.

       That same month, petitioner filed an appeal in the Circuit Court of Morgan County. In
December of 2013, the circuit court held a hearing on the appeal. Thereafter, the circuit court
denied petitioner’s appeal and upheld his sentence. Petitioner appeals from the order denying his
appeal below.

       We have previously established the following standard of review:

              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. Hosby, 220 W.Va. 560, 648S.E.2d. 66 (2007), quoting Syl. Pt. 1, State v.
Duke, 200 W.Va. 356, 489 S.E2d. 738 (1997).

        On appeal, petitioner argues that the circuit court abused its discretion when it ordered
that he be incarcerated for not completing community service despite his alleged physical
inability to do so. According to petitioner, his physical handicaps, including a slipped or bulging
disc in his back2, prevented him from performing the required duties of community service.3
West Virginia Code § 62-11A-1a(f) provides that no alternative sentence may require the person
to perform duties which would be detrimental to the convicted person’s health as attested by a
physician. However, the circuit court determined that there was no clear evidence on the record
that petitioner’s medical problems prevented him from performing the duties of community



       2
        Petitioner’s exhibits at the circuit court hearing below consisted of several hundred
pages of undifferentiated progress emails, radiology reports, consultation requests, and a letter
dated September 26, 2013, which states that petitioner had “medical issues diagnosed” and that
he should refrain from frequent bending, lifting, and twisting.
       3
        On appeal, petitioner also argues that the Americans With Disabilities Act, 42 U.S.C. §
12181 et seq., (“the Act”) requires both public and private institutions to make such reasonable
accommodations in their activities as will enable a handicapped person to participate in what
they provide to the same extent as a non-handicapped person. However, petitioner concedes that
this appeal is not an action under the Act. As such, we will not address this assignment herein.
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service or that the duties required during community service.4 We agree.

        The record shows that petitioner did not address any physical limitations with the
sentencing court. Further, petitioner did not seek an accommodation with the sentencing court,
and did not seek leave of any court before he unilaterally terminated his community service.
Further, petitioner did not fail in his attempt to complete the community service, but instead he
refused to perform the services as directed, left the program, and did not return for three and a
half months. As such, we find no error in the circuit court revoking petitioner’s probation as the
record is devoid of any evidence supporting his claim that he was physically unable to complete
community service.

        Further, petitioner argues that the Morgan County community service program was
operated solely at the discretion of its untrained director, with no guidelines or standards, thus
depriving petitioner of his constitutional right to due process. However, petitioner offers no proof
that the community services director acted arbitrarily and capriciously and concedes that he did
not adequately brief the matter here. As such, we will not further address this assignment herein.

        Finally, petitioner argues that the circuit court wrongly relied on a written email from the
director of inmate services of the Eastern Regional Jail regarding petitioner’s physical abilities
and that the circuit court reached its own conclusion as to petitioner’s physcial ability to perform
community service, contrary to the evidence and facts. We find no merit in petitioner’s argument
that the circuit court abused its discretion in relying on the written email or in its conclusions
based on the facts and evidence. The circuit court considered the written statement only to the
extent that petitioner confirmed its content.5 The circuit court found that the principal evidence
against petitioner was presented through the transcript and was subject to cross-examination by
petitioner at the hearing conducted by the magistrate court on September 27, 2013. Petitioner
offered two transcripts from the proceedings before the magistrate court as evidence before the
circuit court. The circuit court correctly considered prior recorded testimony where it was subject
to cross examination. See Rule 804(b)(1), West Virginia Rules of Evidence. The State offered
before the circuit court the written email from the director of inmate services to show that
petitioner was medically cleared by the Eastern Regional Jail medical staff and given a complete
       4
         It is not clear on the record what physical activities petitioner would have been asked to
perform to complete his court ordered community service. The community service director
testified that activities might include, but were not limited to, janitorial services and some
manual labor. What is clear from the record is that petitioner participated in one day of
community service and performed various manual labor duties while seated. When petitioner
was told that this kind of work was not guaranteed, he left the community service program, did
not communicate with the community services director, and did not return to the program until
after the completion date lapsed.
       5
         Petitioner acknowledged on the record that he did undergo a complete physcial in order
to be eligible for work as a trustee in the jail, that he was asked about any physical limitations or
disabilities that would prevent him from working, and, finally, petitioner stated that he was in
good health and had no physical limitations that would prevent him from working as a trustee.
While admission of the email statement by the circuit may have been harmless error, petitioner
confirmed the contents of the email during his own testimony before the circuit court.
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physical in order to be eligible for work as a trustee in the jail. The email stated that the director
interviewed petitioner himself and asked petitioner about any physical limitations or disabilities
that prevented him from working and petitioner stated that he was in good health and had no
physical limitations that would prevent him from working as a trustee. Further, petitioner
acknowledged that he worked as a trustee at the jail without incident. Given petitioner’s
admissions regarding the accuracy of it’s contents, the circuit court did not err in admitting the
document in question.

        Petitioner was twice given the opportunity to avoid incarceration by participation in an
education program or community service. However, he refused both opportunities. The record is
clear that petitioner was dismissed from the batterer’s intervention program and from the
community service program because of his refusal to cooperate, not because of his alleged
physical limitations. For these reasons, we find that the circuit court did not abuse its discretion
when it ordered that petitioner serve his original sentence of incarceration.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: May 18, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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