                                  STATE OF WEST VIRGINIA
                                SUPREME COURT OF APPEALS


STATE OF WEST VIRGINIA ex rel.
JAMES WILLIAM HOWELL, JR.,
Petitioner,                                                                            FILED
                                                                                   November 5, 2019
vs)    No. 19-0065 (Randolph County Nos. 16-F-104, 16-F-125)                            released at 3:00 p.m.
                                                                                    EDYTHE NASH GAISER, CLERK
                                                                                    SUPREME COURT OF APPEALS
THE HONORABLE DAVID H. WILMOTH,                                                          OF WEST VIRGINIA

JUDGE OF THE CIRCUIT COURT OF RANDOLPH COUNTY,
and MICHAEL W. PARKER, RANDOLPH COUNTY
PROSECUTING ATTORNEY,
Respondents


                                   MEMORANDUM DECISION

        Petitioner James William Howell, Jr., by counsel Phillip S. Isner and David C. Fuellhart,
petitions this Court to invoke its original jurisdiction pursuant to Rule 16 of the West Virginia Rules
of Appellate Procedure. Petitioner seeks a writ of prohibition, or alternatively, a writ of mandamus
against respondents, the Honorable David H. Wilmoth, Judge of the Circuit Court of Randolph
County, and Michael W. Parker, Randolph County Prosecuting Attorney (“the State”)1, challenging
the circuit court’s denial of petitioner’s motion to dismiss the probation violation proceeding brought
against him.

         Upon thorough consideration of the petition for writ of prohibition, the State’s response, the
brief of the Intervenor, the West Virginia Division of Corrections and Rehabilitation (“DCR”),2 the
parties’ oral arguments, and the appendix record, we conclude that the circuit court neither lacked
jurisdiction nor exceeded its jurisdiction in entering the order at issue and, therefore, extraordinary
relief should not issue as the rule to show cause in this matter was improvidently granted. Because
we discern no substantial question of law in connection with the petition, a memorandum decision
denying the requested writ is the appropriate disposition pursuant to Rule 21 of the West Virginia
Rules of Appellate Procedure.




       1
           The State is represented by Mr. Parker.
       2
        The DCR, by counsel Briana J. Marino, was invited by the Court to intervene in this case
when the Court issued the rule to show cause. We appreciate the DCR’s participation and have
considered the position it advanced.

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                                                I. Facts

        On August 27, 2015, petitioner sold methamphetamine to a confidential informant and was
later convicted of delivery of a controlled substance.3 Thereafter, on March 30, 2016, petitioner was
involved in stealing personal property from others, which was valued at $5,100, and was later
convicted of conspiracy.4 On March 20, 2017, petitioner was sentenced in both aforementioned
cases as follows:

                 The court ORDERED that the Defendant shall be and is hereby
                 sentenced to not less than one (1) nor more than five (5) years on the
                 offense of Delivery of a Controlled Substance . . . . The Court
                 ORDERED that the Defendant shall be and is hereby sentenced to not
                 less than one (1) nor more than (5) years in the state penitentiary for
                 the offense of Conspiracy . . . . The Court ORDERED that said
                 sentences shall run consecutively to each other. The Court further
                 ORDERED that the execution of the second sentence shall be and is
                 hereby suspended and the Defendant shall be placed on five (5) years
                 of supervised probation with the Randolph County Probation Office
                 upon release from the first sentence. . . .

(Emphasis added).

        Subsequently, on March 9, 2018, petitioner was released from incarceration in the state
penitentiary on his first sentence and placed on parole. Petitioner was granted approval to serve his
parole in the State of Maryland. Upon his release from his first sentence, petitioner reported to the
Randolph County Probation Office and met with his probation officer. At that time, petitioner was
advised of the terms and conditions of his supervised probation imposed on his second sentence, all
as set forth in a document entitled “Probation Supervision Terms and Regulations” in which
petitioner initialed each of the terms and conditions of his supervised probation and signed each
page. Petitioner’s counsel was provided a copy of the document. The document also indicates that
petitioner’s term of supervised probation would expire on April 9, 2023. As with petitioner’s parole,
supervision of petitioner’s probation was also transferred to Maryland following this initial meeting.

        As set forth in a probation violation report dated September 12, 2018, on June 8, 2018,
petitioner’s probation officer received an anonymous tip that petitioner was “actively harassing”
them, was “observed hanging out with known drug dealers” and “was not permitted in town.” The
probation officer contacted the State of Maryland and was told that petitioner had been granted
permission to return to Randolph County to visit his grandmother, who was terminally ill, and should
have returned to Maryland prior to June 8. Then, on June 15, 2018, petitioner’s probation officer


       3
           See W. Va. Code § 60A-4-401(a)(ii).
       4
           See W. Va. Code § 61-10-31.

                                                   2
was contacted by local law enforcement and informed that petitioner “was involved in an incident
that is under investigation wherein . . . [petitioner] was at his father’s home recklessly discharging
a firearm.” Local law enforcement reported that petitioner fled from sheriff’s deputies when they
responded to the scene and verbally told petitioner to stop. Again on July 20, 2018, petitioner was
involved in a high speed pursuit in Randolph County. Petitioner abandoned the car and fled on foot.
After this incident, the sheriff’s deputies obtained a warrant for petitioner for fleeing an officer with
reckless indifference. On September 7, 2018, petitioner was taken into custody after actively eluding
authorities for almost three months. Petitioner told his probation officer that he had been abusing
methamphetamine and other drugs while he was avoiding probation supervision.

       A preliminary hearing on the alleged supervised probation violations was scheduled for
October 15, 2018. At this hearing, petitioner, for the first time, objected to the fact that he was on
probation and orally moved to dismiss the probation violation proceeding, arguing that he had not
been released from his first sentence and, therefore, his sentence of probation for conspiracy on his
second sentence had not yet started. Petitioner then waived his preliminary hearing and the circuit
court granted him time to file a motion and fully brief the issue raised. The circuit court set the
adjudication hearing for November 26, 2018.

       Petitioner filed a “Motion to Dismiss Probation Violation Proceedings” before the November
hearing. In his motion, which cited no legal authority, petitioner’s counsel argued that his
probationary term had not yet begun, because at the time the State sought to revoke his probation,
he was still on parole and therefore had not been “released from his first sentence[.]”

        At the November 26, 2018, adjudication hearing on petitioner’s alleged violations of the
terms of his supervised probation, petitioner’s counsel argued that petitioner simply could not violate
his probation because it had not started. He further maintained that the circuit court was without
jurisdiction because his client was not on probation. He asked that the proceeding be dismissed and
“the parole board can deal with it in whatever way they see appropriate[.]”5 The circuit court, by
order entered December 12, 2018, denied petitioner’s motion to dismiss the probation violation
proceeding, finding that “it was the Court’s intention to place the Defendant on probation upon his
release from incarceration[]” from petitioner’s first sentence.6




        5
         According to petitioner in his petition, he also had a parole violation proceeding pending at
the time the instant issue was raised before the circuit court. Petitioner indicates that he stipulated
to violating his parole and was incarcerated until June of 2019. There is nothing in the record to
indicate whether petitioner has been released, although the DCR represented to the Court during oral
argument that petitioner was fully discharged from his first sentence on September 12, 2019.
        6
         The circuit court stayed the proceedings in order to allow petitioner to file a petition for a
writ of prohibition with this Court.


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        Petitioner filed the instant petition for writ of prohibition seeking to prohibit the circuit court
from continuing with the probation violation proceeding because the petitioner had not yet begun
his probationary period, or, in the alternative, requiring the circuit court to modify the sentencing
order to show that petitioner is actually serving concurrent sentences.

                                       II. Standard of Review

        Petitioner seeks a writ of prohibition to prevent his probation violation proceeding from
occurring. It is well-established law that “the right to prohibition must be clearly shown before a
petitioner is entitled to this extraordinary remedy.” Norfolk S. Ry. Co. v. Maynard, 190 W.Va. 113,
120, 437 S.E.2d 277, 284 (1993). Further, “[t]he writ of prohibition will issue only in clear cases,
where the inferior tribunal is proceeding without, or in excess of, jurisdiction.” Syllabus, State ex rel.
Vineyard v. O’Brien, 100 W. Va. 163, 130 S.E. 111 (1925); see Syl. pt. 2, State ex rel. Peacher v.
Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977) (“A writ of prohibition will not issue to prevent
a simple abuse of discretion by a trial court. It will only issue where the trial court has no
jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.”). We
have also set forth the following standard for ascertaining whether to issue a writ of prohibition:

                         In determining whether to entertain and issue the writ of
                prohibition for cases not involving an absence of jurisdiction but only
                where it is claimed that the lower tribunal exceeded its legitimate
                powers, this Court will examine five factors: (1) whether the party
                seeking the writ has no other adequate means, such as direct appeal,
                to obtain the desired relief; (2) whether the petitioner will be damaged
                or prejudiced in a way that is not correctable on appeal; (3) whether
                the lower tribunal’s order is clearly erroneous as a matter of law; (4)
                whether the lower tribunal’s order is an oft repeated error or
                manifests persistent disregard for either procedural or substantive
                law; and (5) whether the lower tribunal’s order raises new and
                important problems or issues of law of first impression. These factors
                are general guidelines that serve as a useful starting point for
                determining whether a discretionary writ of prohibition should issue.
                Although all five factors need not be satisfied, it is clear that the third
                factor, the existence of clear error as a matter of law, should be given
                substantial weight.

Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). With the foregoing
factors in mind, we undertake an examination of petitioner’s argument.

                                            III. Discussion

        Petitioner’s sole basis for seeking extraordinary relief from this Court is his claim that the
circuit court had no authority to revoke his probation on the second of two consecutive sentences
when he had yet to complete the first sentence of those sentences. He argues, again with no

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supporting authority, that he was not released from his first sentence until he either discharged the
entirety of the sentence through incarceration or alternatively was released from parole. According
to petitioner, because his probationary term, under the circuit court’s sentencing order, did not begin
until he discharged his first sentence or was released from parole on his first sentence—neither of
which had occurred in this case when the State sought to revoke his probation—the circuit court was
without the authority to revoke his probation, because he had yet to begin his probation term.

       In contrast, respondent argues that the writ should be dismissed because petitioner had other
adequate means to pursue relief through a direct appeal. Respondent contends that petitioner’s

               argument that his period of probation had yet to begin is thinly[]
               veiled fiction based upon wording in an order that could have
               admittedly been clearer. However, the defendant was expressly aware
               that he was placed on supervised probation and had actual notice of
               the terms and conditions of that probation. The purported issues with
               the language of the sentencing order were only raised after the
               defendant committed multiple violations of the terms of that
               probation.

        Lastly, the intervenor DCR urges the Court to define the terms “release”7 from custody and
“discharge”8 from custody and advocates that the Court adopt the plain, ordinary meaning of each
of those terms.

         Applying the Hoover factors to the instant case, we are troubled that petitioner fails to meet
the first factor, because he certainly has another adequate means to obtain relief—a direct appeal.
Hoover, 199 W. Va. at 15, 483 S.E.2d at 15, Syl. Pt. 4, in part. While the circuit court stayed its
order in this case to allow petitioner the opportunity to pursue extraordinary relief in this Court, we
are mindful that petitioner is before this Court on a purely interlocutory order as all that has
transpired at this juncture is that petitioner’s motion to dismiss the probation violation proceeding
has been denied. Petitioner’s probation has not been revoked. See State v. Hamby, No. 11-0942,
2012 WL 3079152, at *2 (W. Va. April 16, 2012) (memorandum decision)(resolving similar facts
and the same issue as presented in the instant case on direct appeal after petitioner’s probation was


       7
        According to the DCR, in a circuit court’s sentencing order, “release” would describe “the
day, month, and year of the individual’s exit from physical incarceration within a prison or jail
operated by the State of West Virginia.”
       8
        The DCR contends that the term “discharge” would be used “to describe the complete
extinguishment of the executive branch’s jurisdiction over the person in every form—incarceration
and parole—by virtue of completion of his/her sentence.” Thus, as the DCR maintains, it will
“consider an inmate as having ‘discharged’ his/her sentence when the inmate has served all required
periods of incarceration and parole such that he/she is no longer subject to jurisdiction of DCR for
the crime(s) committed in the associated order.”

                                                  5
revoked).9 As we have repeatedly stated, “[o]ur law plainly says that a writ of prohibition may not
be used as a substitute for appeal.” State ex rel. Shelton v. Burnside, 212 W. Va. 514, 518, 575
S.E.2d 124, 128 (2002); see also State ex rel. Maynard v. Bronson, 167 W. Va. 35, 41, 277 S.E.2d
718, 722 (1981) (“[P]rohibition cannot be substituted for a writ of error or appeal unless a writ of
error or appeal would be an inadequate remedy.”).

        We also focus on the third Hoover factor—“whether the lower tribunal’s order is clearly
erroneous as a matter of law[.]” 199 W. Va. at 15, 483 S.E.2d at 15, Syl. Pt. 4, in part. It is this
factor that we have said should be given “substantial weight” in reaching the decision on whether
to issue a writ of prohibition. Id. Succinctly stated, it is the absence of any authority showing that
the circuit court’s order was “clearly erroneous as a matter of law” that is also fatal to petitioner’s
case. As petitioner offers no law to show that the circuit court’s order was erroneous, we are left
with a sentencing order that was lawful, was carried out as intended, and was understood by
petitioner, who reported to his probation officer immediately upon his release from incarceration and
signed and initialed every term in the “Probation Supervision Terms and Regulations” document.
It was only after he violated the terms of his supervised probation and was searching for a means of
avoiding the consequences that he raised the novel argument that his supervised probation had never
begun.

        Because petitioner provides us with no legal basis to find any error committed by the circuit
court in its decision and because petitioner has other adequate means of relief, the Court finds that
the rule to show cause was improvidently granted. See State ex rel. W. Va. Secondary Sch. Activity
Comm’n v. Hrko, 213 W.Va. 219, 579 S.E.2d 560 (2003)(finding that rule to show cause was
improvidently granted and denying writ); see also State ex rel. Vanderra Res., LLC v. Hummel, 242
W. Va. 35, 829 S.E.2d 35 (2019) (determining that rule to show cause was improvidently granted
and denying requests writs); State ex rel. Nationwide Mut. Ins. Co. v. Marks, 223 W. Va. 452, 676
S.E.2d 156 (2009) (denying writ after finding rule to show cause was improvidently granted). The
writ of prohibition is, therefore, denied.

                                          IV. Conclusion

       Based upon the foregoing, the petitioner’s writ of prohibition is denied.

                                                                                         Writ denied.




       9
         Specifically, in Hamby, we rejected the argument that the circuit court lacked jurisdiction
over petitioner for purposes of hearing the probation revocation proceeding, which resulted in
petitioner’s probation being revoked, and determined that there was nothing in the circuit court’s
sentencing order “or our prior holdings [that] requires . . . petitioner [to] be fully discharged from
the sentence in order to begin serving her probation.” No.11-0942, 2012 WL 3079152, at *2.

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ISSUED: November 5, 2019

CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evans H. Jenkins
Justice John A. Hutchison




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