                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                    May 18, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-1248 (Marshall County 09-F-09)                                      OF WEST VIRGINIA


Mark Anthony Henry,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Mark Anthony Henry, by counsel John R. Anderson, appeals the October 22,
2013, order of the Circuit Court of Marshall County that revoked his probation and sentenced
him to his entire underlying term of four to thirty years of incarceration. The State, by counsel
Derek A. Knopp, filed a response in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court erred (1) in failing to apply the 120-day limitation on incarceration
under West Virginia Code § 62-12-10(a)(2) (2013), and (2) in finding that he violated his
probation by committing the crime of obstructing a police officer.

        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 September of 2009, petitioner pled guilty to four counts of delivery of a controlled
substance. The circuit court sentenced him to a cumulative term of four to thirty years of
incarceration, but it suspended that sentence and imposed a five-year probationary period. The
terms and conditions of petitioner’s probation required him not to violate any criminal law of this
State; to refrain from associating with persons in the possession of a controlled substance; and to
abstain from the use or possession of certain controlled substances.

       Between 2010 and 2013, petitioner’s probation officer filed three petitions to revoke his
probation. In February of 2010, his probation officer filed the first such petition to revoke his
probation alleging that he failed a drug screen for marijuana in November of 2009; was arrested
for domestic battery in early February of 2010; and was arrested for possession of a controlled
substance in mid-February of 2010.1 In August of 2012, petitioner’s probation officer filed a
second petition to revoke his probation alleging that he was arrested for battery in February of

       1
        Although unclear from the record on appeal, the parties agree in their briefing to this
Court that there was no disposition of the 2010 revocation petition.
                                                1

2012; was arrested in August of 2012 for three offenses, including possession of a controlled
substance, driving while license suspended or revoked, and no proof of security liability
insurance; and failure to report these arrests to his probation officer. The circuit court found that
petitioner violated the terms and conditions of his probation for driving while his license was
suspended or revoked, failing to report the arrest to his probation officer, and lying under oath.
Initially, the circuit court revoked petitioner’s probation and sentenced him to the full underlying
prison term. However, it reconsidered that ruling after sixty days of incarceration and imposed an
alternative sentence of home confinement with continued probation thereafter.

         In March of 2013, petitioner’s probation officer filed a third petition to revoke his
probation alleging that he was again arrested on March 18, 2013, for possession of a controlled
substance and obstructing a police officer. At the final revocation hearing in May of 2013, the
circuit court heard testimony that petitioner was arrested for possession of Oxycodone, a
Schedule II controlled substance, which is a narcotic, and obstructing a police officer. The circuit
court also heard the testimony of petitioner and his witness, Wanda Rose, that Ms. Rose had
possession of the Oxycodone at issue without a valid prescription and accidentally or mistakenly
gave it to petitioner. The circuit court found that petitioner violated the terms and conditions of
his probation as follows: by committing the crimes of possession of a controlled substance and
obstructing an officer; by failing to comply with the rules and regulations for his supervised
probation; by associating with any person who manufactures, delivers, possesses, or uses
controlled substances; and by possessing narcotic drugs. Between the hearing in May of 2013
and entry of the circuit court’s final order, petitioner moved for his sentence to be limited to 120
days of incarceration as a second-time probation violator, pursuant to West Virginia Code § 62­
12-10(a)(2) (2013), because the only charged violation supported by evidence was simple
possession. In October of 2013, the circuit court entered its final order revoking petitioner’s
probation and sentencing him to the entire underlying prison term of four to thirty years. In doing
so, it explained that petitioner exceeded three violations of his probation, and, therefore, the 120­
day limitation for a second probation violation located in West Virginia Code § 62-12-10(a)(2)
(2013) did not apply. This appeal followed.

       We have previously held that

               “[w]hen 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. Hosby, 220 W.Va. 560, 648 S.E.2d 66 (2007).

        On appeal, petitioner contends that the circuit court erred by failing to apply the 120-day
limitation for a second probation violation located in West Virginia Code § 62-12-10(a)(2)
(2013). However, following a thorough review of the record in this matter, it is clear that the



                                                 2

2013 version of the statute took effect after petitioner’s probation violations, and that statute does
not apply retroactively. We have held that

       “‘[t]he presumption is that a statute is intended to operate prospectively, and not
       retrospectively, unless it appears, by clear, strong and imperative words or by
       necessary implication, that the Legislature intended to give the statute retroactive
       force and effect.’ Pt. 4, syllabus, Taylor v. State Compensation Com’r, 140 W.Va.
       572, [86 S.E.2d 114 (1955) ].”

Syl. Pt. 6, Miller v. Smith, 229 W.Va. 478, 729 S.E.2d 800 (2012) (applying a prior statute that
was in effect at the time of the incident). A plain reading of this statute clearly shows that the
Legislature did not include the necessary language for the 2013 amendments to apply
retroactively. As such, West Virginia Code § 62-12-10 (2013) was intended to operate
prospectively. Here, it is undisputed that the acts in question, and petitioner’s arrest therefor,
occurred in March of 2013. The probation officer filed the revocation petition in March of 2013,
and the revocation hearing occurred in May of 2013. West Virginia Code § 62-12-10 (2013) did
not become effective until July 12, 2013. As such, these violations clearly occurred while West
Virginia Code § 62-12-10 (1955) was still in effect. Therefore, we conclude that the previous
version of the statute is applicable in this case.

         West Virginia Code § 62-12-10 (1955) provides, in part, that “[i]f it shall then appear to
the satisfaction of the court or judge that any condition of probation has been violated, 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.” The terms and conditions of
petitioner’s probation clearly required him not to violate any criminal law of this State; to refrain
from associating with persons in the possession of a controlled substance; and to abstain from the
use or possession of narcotic drugs. The circuit court heard sufficient evidence to find, by a
preponderance of the evidence, that petitioner violated these terms and conditions by violating
the criminal laws of this state by possessing a controlled substance; associating with Ms. Rose, a
person who possessed a controlled substance; and possessing Oxycodone, a narcotic drug. See
Syl. Pt. 4, Sigman v. Whyte, 165 W.Va. 356, 268 S.E.2d 603 (1980) (stating that “[w]here a
probation violation is contested, the State must establish the violation by a clear preponderance
of the evidence.”). These violations occurred while West Virginia Code § 62-12-10 (1955) was
still in effect, and the Legislature did not include the necessary language for the 2013 statute to
apply retroactively. Therefore, the circuit court did not abuse its discretion in revoking
petitioner’s probation and revoking the suspension of the original sentence of four to thirty years
of incarceration.

         As noted above, the circuit court resentenced petitioner to a term of incarceration of four
to thirty years on his 2009 convictions. In doing so, the circuit court applied the 2013 version of
West Virginia Code § 62-12-10, and held that petitioner’s violations exceeded the third violation
necessary to trigger the imposition of the original sentence. To the extent that the circuit court
erroneously relied on the provisions of West Virginia Code § 62-12-10 (2013), we find that it
was harmless error because the sentence imposed was proper under the applicable version of the
statute.



                                                  3

        Petitioner’s second and final assignment of error is that the circuit court erred in revoking
his probation based on the finding that he committed new criminal conduct by obstructing a
police officer. In support of his contention, petitioner again cites West Virginia Code § 62-12-10
(2013) as it relates to “new criminal conduct.”2 However, because West Virginia Code § 62-12­
10 (2013) does not apply to petitioner’s proceeding, even assuming petitioner is correct that the
circuit court erred in finding that he obstructed a police officer, sufficient evidence remains to
support petitioner’s revocation, as explained above, under West Virginia Code § 62-12-10
(1955). The 1955 version of West Virginia Code § 62-12-10 does not contain the provisions of
the 2013 amendments related to “new criminal conduct” or limitations on incarceration for
certain first and second violations. To the extent the circuit court committed any error in this
regard, such error is harmless.

       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




       2
        See West Virginia Code §§ 62-12-10(a)(1)-(2) (2013) (stating that “[i]f the court ... finds
reasonable cause exists to believe that the probationer . . . [e]ngaged in new criminal conduct
other than other than a minor traffic violation or simple possession of a controlled substance . . .
the court . . . may revoke the suspension of imposition or execution of sentence . . . . [or] [f]or the
third violation, the judge may revoke the suspension of imposition or execution of sentence,
impose sentence if none has been imposed and order that sentence be executed[.]”).
                                                  4

