                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                         FILED
                                                                                  June 15, 2018
vs.) No. 17-0624 (Berkeley County CC-02-2011-F-189)                             EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA 
Rafael D. Zuniga,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Rafael D. Zuniga, by counsel Michael Santa Barbara, appeals the Circuit Court
of Berkeley County’s July 13, 2017, order revoking his probation and imposing the underlying
sentence. The State, by counsel Gordon L. Mowen, II, filed a response in support of the circuit
court’s order. On appeal, petitioner argues that the circuit court erred in revoking his probation
and imposing the underlying sentence when the only testimony presented by the State was
impermissible hearsay.

        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, this 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 October of 2011, petitioner was indicted on three felony counts: two counts of delivery
of a controlled substance and one count of conspiracy to deliver. In April of 2012, petitioner
entered into a plea agreement wherein he pled guilty to one count of delivery of a controlled
substance. After considering the evidence, the circuit court sentenced petitioner to incarceration
for an indeterminate term of not less than one nor more than fifteen years. However, the circuit
court immediately suspended petitioner’s sentence and placed him on probation for a period of
five years, subject to certain terms and conditions.

        The State filed a petition for revocation of probation in October of 2016 and an amended
petition in May of 2017. The amended petition contained allegations that, in May of 2014,
petitioner was arrested and charged with domestic battery, obstructing, and refusing to be
fingerprinted. Petitioner pled no contest to the obstructing charge. The amended petition also
contained allegations that, in May of 2016, petitioner was arrested and charged with improper
(expired and altered) registration of a vehicle and with an open alcohol container violation.
Petitioner eventually pled guilty to the latter charge. Additionally, petitioner was arrested in
August of 2016 on two counts of violating a domestic violence protective order and one count of
stalking. Later in August of 2016, petitioner was also charged with felony strangulation without

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consent. The amended petition also noted that petitioner had been charged with disturbing the
peace in August of 2015, and tested positive for marijuana in May of 2016.

        The circuit court held a hearing on the matter in June of 2017. The State presented the
testimony of petitioner’s probation officer, who testified that he had supervised petitioner since
May of 2012. The probation officer testified regarding his investigation, the criminal charges and
convictions petitioner acquired during his probation, and the investigation of petitioner’s most
recent charges stemming from allegedly stalking and strangling his girlfriend. After some time,
counsel for petitioner objected, stating “Your Honor, I’ve stayed silent here for awhile, but I
don’t understand how this recitation of unsupported facts [is] relevant to the [State’s] revocation
of probation.” After hearing the State’s response to his objection, counsel for petitioner
continued:

       Your Honor, my objection still stands however because the violation of probation
       apparently is predicated upon that the [d]efendant shall violate no laws. In this
       instance, Your Honor, based upon the matters described in [the petition], I believe
       . . . there’s been no demonstration that the [petitioner] has violated any laws,
       therefore this testimony relating to [petitioner’s girlfriend] and these new charges
       or claims made by her are not relevant to the violation – the revocation of
       probation.

        The circuit court overruled petitioner’s objection, finding that the testimony regarding the
August of 2016 charges was relevant. Apart from the probation officer’s testimony, other
evidence considered included the new indictment surrounding the August of 2016 charges, a
sworn complaint regarding the same, and conviction records. After hearing evidence, the circuit
court found that the evidence showed that petitioner violated the terms and conditions of his
probation and committed new criminal conduct. Accordingly, the circuit court revoked
petitioner’s probation and ordered him to serve his underlying sentence. It is from the June 13,
2017, order that petitioner appeals.

       We have previously established the following standard of review in cases such as this:

               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. Duke, 200 W.Va. 356, 489 S.E.2d 738 (1997).

        On appeal, petitioner argues that the circuit court erred in revoking his probation and
imposing the underlying sentence when “the only evidence of a crime committed by [petitioner]
came from the mouth of the Chief Probation Officer” and was impermissible hearsay, as the
State failed to show that the actual witnesses to the alleged crimes were unavailable to testify.
Petitioner argues that, as such, his due process rights were violated because he was denied the


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opportunity to confront and cross-examine any witnesses to the alleged crimes contained in the
amended petition. We find petitioner’s argument to be without merit.

       West Virginia Code § 62-12-10(a)(1)(B) and (C) provide that

       (a) If at any time during the period of probation there shall be reasonable cause to
       believe that the probationer has violated any of the conditions of his or her
       probation, the probation officer may arrest him or her with or without an order or
       warrant, or the court which placed him or her on probation, or the judge thereof in
       vacation, may issue an order for his or her arrest, whereupon he or she shall be
       brought before the court, or the judge thereof in vacation, for a prompt and
       summary hearing.

       (1) If the court or judge finds reasonable cause exists to believe that the
           probationer:

               ....

       (B) Engaged in new criminal conduct other than a minor traffic violation or
       simple possession of a controlled substance . . .

       (C) . . . the court or judge may revoke the suspension of imposition or execution
       of sentence, impose sentence if none has been imposed and order that sentence be
       executed.

        Petitioner’s argument that the “only” evidence of a crime committed by him was hearsay
evidence related to his August of 2016 domestic battery, stalking, and strangulation charges is
inaccurate. His argument ignores the fact that evidence was submitted showing that petitioner
pled no contest to an obstruction charge in May of 2014. As such, sufficient evidence existed to
show that petitioner committed a new crime beyond a minor traffic violation or simple
possession and thus, violated the terms and conditions of his probation. While petitioner argues
that the circuit court relied heavily on the testimony regarding the August of 2016 charges, he
does not dispute that he was convicted of other crimes during his period of probation. Further,
while it is true that the probation officer testified that it was the August of 2016 charges that led
him to file the petition for revocation of probation, he noted that he believed petitioner’s
probation should be revoked when viewing petitioner’s history of arrests, charges, and
convictions during his probation as a whole. After reviewing the record, we agree with the circuit
court’s finding of clear and convincing evidence that petitioner violated a condition of his
probation and its decision to revoke petitioner’s probation. Accordingly, petitioner is entitled to
no relief in this regard.

       For the foregoing reasons, the circuit court’s June 13, 2017, order revoking petitioner’s
probation and imposing the underlying sentence is hereby affirmed.


                                                                                          Affirmed.


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ISSUED: June 15, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

Justice Allen H. Loughry II, suspended and therefore not participating
        




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