                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


                                                                                      FILED
State of West Virginia,
                                                                                    April 13, 2015
Plaintiff Below, Respondent                                                      RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
vs) No. 14-0737 (Berkeley County 13-F-161)                                         OF WEST VIRGINIA



Krystal M.,

Defendant Below, Petitioner



                               MEMORANDUM DECISION
        Petitioner Krystal M., by counsel B. Craig Manford, appeals the Circuit Court of Berkeley
County’s June 6, 2014, order revoking her probation and re-imposing her sentence of one to five
years in prison for child abuse causing serious bodily injury.1 The State, by counsel Cheryl
Saville, filed a response in support of the circuit court’s order.

        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 May of 2013, a Berkeley County Grand Jury indicted petitioner on two counts of child
abuse causing bodily injury, one count of child abuse causing serious bodily injury, and one count
of gross child neglect creating substantial risk of serious bodily injury. As part of a plea
agreement, petitioner pled guilty to one count of child abuse causing bodily injury in violation of
West Virginia Code § 61-8D-3(a) and the State dismissed the remaining counts. On March 31,
2014, the circuit court sentenced petitioner to one to five years in prison, but suspended all but
four months of petitioner’s sentence and placed her on five years of supervised probation.



       1
          “We follow our past practice in . . . cases which involve sensitive facts and do not utilize
the last names of the parties.” State ex rel. West Virginia Dep’t of Human Servs. v. Cheryl M., 177
W. Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987) (citations omitted). See also State v.
Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990) (“Consistent with
our practice in cases involving sensitive matters, we use the victim’s initials. Since, in this case,
the victim . . . [is] related to the [petitioner], we have referred to the [petitioner] by his last name
initial.” (citations omitted)).

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Petitioner agreed to certain terms and conditions of probation, which included that it was a
“necessity that there be no contact with Bradley Silver.”2

        On May 5, 2014, petitioner’s probation officer filed a petition for revocation of probation
alleging that petitioner had sixty-three telephone conversations with Bradley Silver while she was
incarcerated.3 The circuit court held a probation revocation hearing on June 2, 2014, during which
petitioner admitted contacting Mr. Silver sixty-three times in violation of the terms and conditions
of her supervised probation. Accordingly, the circuit court re-imposed the original sentence with
credit for time served. It is from this order that petitioner appeals.

        On appeal, petitioner argues that she was subject to only a sixty-day term of incarceration
pursuant to West Virginia Code § 62-12-10(a)(2) because her sixty-three violations constituted
only a technical violation of the terms of her probation. Specifically, petitioner asserts that the
specific condition prohibiting her from contacting Mr. Silver was not designed to protect a victim
because Mr. Silver did not pose any danger to petitioner’s children.

       As this Court has previously stated:

               “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.” Syllabus
       Point 1, State v. Duke, 200 W.Va. 356, 489 S.E.2d 738 (1997).

Syl. Pt. 1, State v. Inscore, 219 W.Va. 443, 634 S.E.2d 389 (2006).

        Upon our review, we find no abuse of discretion in the circuit court’s decision to revoke
petitioner’s probation. West Virginia Code § 62-12-10(a)(1)(C) states in part, “if the court or
judge finds reasonable cause exists to believe that the petitioner violated a special condition of
probation designed to protect the public or victim; the court or judge may revoke the suspension
of imposition or execution of sentence . . . .” As part of the terms and conditions of petitioner’s
probation, the circuit court clearly stated that it was a “necessity that there be no contact with
Bradley Silver.” Here, it is undisputed that petitioner acknowledged that she contacted Mr. Silver
sixty-three times while she was incarcerated at Eastern Regional Jail. Further, we disagree with
petitioner’s argument that her violations should only be considered a “technical violation”
because petitioner’s children were not in danger of any actual harm. A plain reading of West
Virginia Code § 62-12-10(a)(1)(C), requires that the “special condition of probation was designed
either to protect the public or a victim.”(Emphasis added). The circuit court found that the no-
contact provision was “one of the most important conditions, . . . and really focused on the
       2
           Mr. Silver was petitioner’s live-in boyfriend.
       3
        As a term and condition of her supervised probation, petitioner also agreed to be
incarcerated for four months at Eastern Regional Jail.
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protection of the children.” West Virginia Code § 62-12-10 clearly authorizes revocation of
probation under these circumstances because the no-contact provision was designed to protect the
children. Therefore, this Court declines to find that the circuit court abused its discretion in
revoking petitioner’s probation.

        Petitioner further argues that because her phone calls to Mr. Silver were “technical
violations” of the terms of her probation, she was only subject to a sixty-day term of incarceration
for her first probation violation pursuant to West Virginia Code § 62-12-10(a)(2). Even if this
amounted to “technical violations” of the terms and conditions of petitioner’s probation, we
would find no abuse of the circuit court’s discretion. West Virginia Code § 62-12-10(a)(2) grants
a circuit court the discretion to “revoke the suspension of imposition or execution of sentence”
following a third probation violation. As noted above, petitioner admitted to sixty-three separate
probation violations. These sixty additional probation violations are well in excess of the statutory
minimum required to revoke petitioner’s probation. Thus, we find no merit in petitioner’s
suggestion that she should have been confined for an additional period of sixty days.

       For the foregoing reasons, we affirm.


                                                                                          Affirmed.


ISSUED: April 13, 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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