                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below,
Respondent                                                                             FILED
                                                                                    March 7, 2016
vs) No. 14-0733 (Marion County 09-F-127)                                            RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA
Matthew Allen Delovich, Defendant Below,
Petitioner


                              MEMORANDUM DECISION
        Petitioner Matthew Allen Delovich, by counsel Holly Turkett, appeals the Circuit Court
of Marion County’s May 28, 2014, order revoking his parole and imposing his original sentence
of one to five years following his guilty plea to one count of conspiracy to commit a felony. The
State, by counsel Derek A. Knopp, filed a response. On appeal, petitioner alleges that the circuit
court erred in revoking his parole upon a finding that graduated sanctions were not appropriate.

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

         In June of 2009, petitioner was indicted on one count of felony destruction of property,
one count of receiving or transferring stolen property, and one count of conspiracy. In August of
2009, the circuit court entered a pretrial diversion order whereby the State and petitioner agreed
that if petitioner completed a two-year period of supervision, petitioner would not be prosecuted
on any felony offenses and would, instead, plead guilty to the misdemeanor offense of petit
larceny with a recommendation from the State for a fine of $100. However, approximately one
month later, the State filed a motion to revoke petitioner’s pretrial diversion and reinstate the
matter to the active docket. According to the State, petitioner failed to comply with the terms and
conditions of the pretrial diversion order, as evidenced by his arrest for driving under the
influence. The circuit court held a hearing on the motion in November of 2009, during which
petitioner consented to the pretrial diversion’s revocation. The circuit court then granted the
motion and ordered that the matter be reinstated to the active docket. In January of 2011,
petitioner pled guilty to conspiracy as charged in the third count of the indictment. The circuit
court sentenced petitioner to a term of incarceration of one to five years and then suspended
petitioner’s sentence and placed him on probation for three years.

        In February of 2011, the State filed a petition for revocation of probation and alleged that
petitioner failed to comply with the terms of his probation, as evidenced by his arrest for second

                                                     1


offense driving under the influence. In March of 2011, the circuit court held a final hearing on
the petition for revocation, during which petitioner waived his right to the hearing and admitted
to the probation violation. The circuit court subsequently entered an order revoking petitioner’s
probation and imposing the original sentence of one to five years, with credit for time served.
However, the following month, petitioner filed a motion for reconsideration of sentence pursuant
to Rule 35(b) of the West Virginia Rules of Criminal Procedure. In May of 2011, the circuit
court granted petitioner’s motion, suspended his sentence, and returned him to probation for the
remainder of his original three-year term.

        In July of 2012, the State filed a petition for revocation of petitioner’s probation and
alleged that petitioner violated the following terms and conditions: (1) failed to provide a
hydrocodone prescription he received in August of 2011 to probation personnel; (2) failed to
report to the probation office on October 12, 2011, as directed by his probation officer; (3) failed
to report to the probation office on October 14, 2011, as directed by his probation officer; (4)
failed to report for an appointment on April 3, 2012, as directed by his probation officer; (5)
possessed and consumed methamphetamine on or about May 28, 2012; and (6) committed three
counts of false reporting of an emergency incident between May 30, 2012, and June 12, 2012.
The circuit court held a final hearing on the petition for revocation in September of 2012, during
which petitioner waived his right to the hearing and admitted to the probation violations. The
circuit court then ordered petitioner’s probation revoked and imposed his original sentence of
one to five years, with credit for time served. Petitioner subsequently made a motion for
alternative sentencing, and the circuit court then entered an order imposing home incarceration
for a period of one year.

        In April of 2013, petitioner filed a motion for parole. However, before an order could be
entered ruling on this motion, the State filed a petition for revocation and alleged that petitioner
had a positive drug screen. Petitioner waived his right to a preliminary hearing on the motion.
However, by agreement in July of 2013, petitioner was granted parole. In March of 2014, the
State filed a petition for revocation of parole and alleged the following violations by petitioner:
(1) failure to comply with the Day Report Center; (2) positive drug screen for marijuana on
January 10, 2014; (3) failure to receive permission prior to spending the night at an address other
than his approved residence; (4) admission to consuming alcohol while on parole; and (5)
positive drug screen for Buprenorphine and Norbuprenorphine on February 28, 2014. In May of
2014, the circuit court held a final revocation hearing, during which petitioner waived his right to
the same. The circuit court then heard arguments as to the appropriate disposition. Ultimately,
the circuit court revoked petitioner’s parole and imposed the underlying sentence of one to five
years with credit for time served. It is from the sentencing order that petitioner appeals.

       We have previously held that

              “[t]he decision to grant or deny parole is a discretionary evaluation to be
       made by the West Virginia [Parole Board]. However, such a decision shall be
       reviewed by this Court to determine if the [Parole Board] abused its discretion by
       acting in an arbitrary and capricious fashion.” Syl. Pt. 3, Rowe v. Whyte, 167
       W.Va. 668, 280 S.E.2d 301 (1981).



                                                     2


Syl. Pt. 1, State ex rel. Patton v. Rubenstein, 213 W.Va. 296, 582 S.E.2d 743 (2003). Further,
pursuant to West Virginia Code § 62-11B-12(a)

       in any case where a person has been ordered to home incarceration where that
       person is not in the custody or control of the division of corrections, the circuit
       court shall have the authority of the board of probation and parole regarding the
       release, early release or release on parole of the person.

Additionally, according to West Virginia Code § 62-11B-12(b)

       [a]ny person paroled from a sentence of home incarceration imposed by the
       provisions of this article shall be supervised by the probation office of the
       sentencing court . . . . If at any time during the period of parole from home
       incarceration there is reasonable cause to believe that the person paroled has
       violated the terms and conditions of his or her parole and the home incarceration
       was imposed as an alternative sentence to another form of incarceration, he or she
       shall be subject to the same penalty or penalties as he or she could have received
       at the initial disposition hearing.

As such, it is clear that the circuit court in this matter had authority to act in place of the parole
board.

       On appeal, petitioner does not contest that he violated the terms and conditions of his
parole. Instead, petitioner argues that the circuit court erred in finding that the graduated
sanctions as set forth in West Virginia Code § 62-12-19(a)(2)(B) were not appropriate. Pursuant
to West Virginia Code § 62-12-19(a)(2)(B),

       [i]f the Parole Board panel finds that reasonable cause exists to believe that the
       parolee has violated a condition of release or supervision other than the conditions
       of parole set forth in subparagraph (A), subdivision (2) of this subsection, the
       panel shall require the parolee to serve, for the first violation, a period of
       confinement up to sixty days or, for the second violation, a period of confinement
       up to one hundred twenty days unless the Parole Board makes specific written
       findings of fact that a departure from the specific limitations of this paragraph is
       warranted . . . .”

Specifically, petitioner argues that the circuit court erred in considering evidence of petitioner’s
prior violations of the pretrial diversion agreement, probation, parole, and home incarceration
throughout this matter’s protracted history before it. Petitioner also argues that it was error for
the circuit court to find that he violated the terms of his parole multiple times before the petition
to revoke was filed. Although petitioner admits that this finding is factually accurate, he argues
that the parole officer’s decision not to file a petition after his first infraction should have
required the circuit court to consider this as his first and only parole violation and, as such,
impose a period of incarceration of sixty days as set forth in West Virginia Code § 62-12­
19(a)(2)(B). The Court, however, does not agree.



                                                      3


        First, petitioner cites to no authority prohibiting the circuit court from considering all
evidence before it, including the multiple opportunities it provided petitioner to avoid
incarceration through various forms of alternative sentencing. In fact, the Court believes this
evidence is highly relevant to the circuit court’s determination that graduated sanctions were not
appropriate in this matter, as that evidence speaks to petitioner’s repeated failures to abide by the
terms and conditions of these various alternative sentences. Second, it is clear that the circuit
court complied with the terms of West Virginia Code § 62-12-19(a)(2)(B) by making specific
findings as to why a departure from the limitations of that statute was warranted. Specifically,
the circuit court found that imposition of petitioner’s original sentence was warranted because of
his multiple violations of both home incarceration and parole, and the fact that he was previously
granted home incarceration as an alternative sentence for violating probation. Moreover, the
circuit court found that petitioner was granted parole from home incarceration in spite of those
past violations. As such, the circuit court ruled that a variation from the graduated sanctions was
necessary given the specific facts of the case, and we find no abuse of discretion in this ruling.

       For the foregoing reasons, the circuit court’s May 28, 2014, sentencing order is hereby
affirmed.


                                                                                          Affirmed.

ISSUED: March 7, 2016

CONCURRED IN BY:

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




                                                     4


