                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                        FILED
                                                                               January 13, 2020
vs) No. 18-0862 (Mercer County 17-F-7)                                          EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Nicholas Heaton,
Defendant Below, Petitioner


                               MEMORANDUM DECISION

       Petitioner Nicholas Heaton, by counsel Steven K. Mancini, appeals the Circuit Court of
Mercer County’s September 6, 2018, order revoking his probation. Respondent State of West
Virginia, by counsel Elizabeth Grant, filed a summary response in support of the circuit court’s
order and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in
finding that there was sufficient evidence to support the revocation of his probation.

       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 June of 2016, petitioner was charged, in a twenty-six count indictment, with burglary,
grand larceny, attempt to commit a felony, and entering without breaking into an automobile.1
Pursuant to a plea agreement on March 20, 2018, petitioner pled guilty to three counts of burglary,
one count of grand larceny, two counts of attempt to commit a felony, and two counts of entering
without breaking into an automobile. Thereafter, he was sentenced to one to ten years in prison for
each of the burglary and grand larceny charges; one to three years on the attempt to commit a
felony charges; and a determinate term of two months for the misdemeanor charges of entering
without breaking into an automobile. The circuit court ordered the sentences for the felony
convictions to run concurrently and determined that petitioner’s two-month sentences for the two
misdemeanors had been satisfied. Ultimately, the court suspended petitioner’s sentence for the
felony convictions and placed petitioner on a two-year term of probation.

        As a condition of his probation, petitioner was required to abide by a number of rules and
regulations, including that he would not associate with persons who “are consuming alcohol” or

       1
          Subsequently, an information was filed against petitioner, charging him with one
additional count of attempt to commit a felony.
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“persons who use, [sell], or are involved in controlled substances.” Petitioner was further required
to “report to [his] probation officer monthly, or any other time [his] probation officer” told him to
report and was directed to “not attempt to abscond, avoid, or evade probation supervision.”

        The parties do not dispute that, on July 25, 2018, petitioner was at his residence when his
friend, Cody Dailey, entered the residence with “a case of beer.” Petitioner acknowledges that he
admitted Mr. Dailey into his residence despite knowing Mr. Dailey was in possession of and
consuming alcohol. While petitioner contends that he permitted Mr. Dailey to enter his residence
simply so he could wait for a ride, petitioner admits that, while Mr. Dailey was at his residence,
Mr. Dailey went into the bathroom and consumed a controlled substance that caused him to
overdose.2

        The day following the overdose incident at petitioner’s residence, petitioner’s probation
officer made multiple attempts to contact him – calling him, going to petitioner’s home, calling
petitioner’s fiancé, and calling petitioner’s employer (who advised that petitioner had “called in
sick”). The probation officer continued to attempt to locate petitioner in the subsequent days and
was ultimately advised by petitioner’s grandmother that petitioner was out of town on a camping
trip and unreachable.

        Upon returning home, on July 30, 2018, petitioner self-reported to his probation officer.
Petitioner advised the probation officer that he had been on a camping trip at a remote location
with his fiancé and several friends.3 Petitioner admitted to calling his employer while on his
camping trip and reporting that he would be missing work due to illness; he also claims that, after
telephoning his employer, that he dropped and broke his phone, rendering it unusable. Petitioner’s
fiancé stated that her cell phone battery went dead while the couple was camping and she did not
receive any messages from the probation officer until Monday, July 30, 2018. Petitioner claims
that he did not know his probation officer was trying to reach him until he returned home on July
30, 2018, at which time he immediately reported to the probation office.

         On July 31, 2018, respondent filed a petition to revoke petitioner’s probation, alleging that
petitioner admittedly associated with persons who were consuming alcohol, that he did not report
to the probation officer when the officer tried to reach him by telephone and home visit, and that
petitioner attempted to abscond. A hearing was held on the revocation petition on September 4,
2018, at which the probation officer, petitioner, his fiancé, petitioner’s mother, and grandmother
testified. Two days later, the circuit court issued its order revoking petitioner’s probation. On
September 24, 2018, petitioner filed a “motion for reconsideration” of the revocation of his
probation, arguing that the circuit court did not include specific written findings of fact in its
revocation order.

        By amended order, entered October 1, 2018, the circuit court confirmed its revocation of
petitioner’s probation and set forth detailed findings. Specifically, the court found that petitioner


       2
           Mr. Dailey fully recovered from the overdose.
       3
          The record reflects that petitioner left on the camping trip on the night of the overdose
incident, a Wednesday, and did not return home until the following Monday.
                                                  2
clearly violated the terms and conditions of his probation by associating with persons consuming
alcohol and using controlled substances; by failing to notify his probation officer of the overdose
incident at petitioner’s residence or his camping trip; and by failing to timely respond to the
probation officer’s multiple telephone calls and visits. Due to these violations of the terms and
conditions of his probation, the court reasoned that, pursuant to West Virginia Code § 62-12-10,
revocation of petitioner’s probation was warranted. It is from the circuit court’s October 1, 2018,
amended order that petitioner now appeals.

       We have 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.”

Syl. Pt. 1, State v. Duke, 200 W. Va. 356, 489 S.E.2d 738 (1997).

       West Virginia Code § 62-12-10(a)(1) and (2) addresses the violation of probation and
provides that

       [i]f 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: (A) Absconded supervision; (B) Engaged in new criminal
               conduct other than a minor traffic violation or simple possession of a
               controlled substance; or (C) violated a special condition of probation
               designed either to protect the public or a victim; 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.

           (2) If the judge finds that reasonable cause exists to believe that the probationer
               violated any condition of supervision other than the conditions of probation
               set forth in subdivision (1) of this subsection then, for the first violation, the
               judge shall impose a period of confinement up to sixty days or, for the
               second violation, a period of confinement up to one hundred twenty days.
               For the third violation, the judge may revoke the suspension of imposition
               or execution of sentence, impose sentence if none has been imposed and



                                                   3
                order that sentence be executed, with credit for time spent in confinement
                under this section.

         Here, the circuit court found that the revocation of petitioner’s probation was “authorized
under West Virginia Code § 62-12-10[(a)(1)(A)].” On appeal, petitioner argues that there is no
allegation that he committed another crime or violated a special condition of his probation
designed to protect the public or a victim. Therefore, to revoke petitioner’s probation under West
Virginia Code § 62-12-10(a)(1), as opposed to ordering a sixty-day term of imprisonment for a
first violation as outlined in West Virginia Code § 62-12-10(a)(2), it was necessary for the court
to find that petitioner absconded supervision, which petitioner contends was insufficiently
established. Simply put, petitioner argues that it was illogical for the circuit court to find that he
violated the terms of his probation by attempting to “abscond supervision” by failing to promptly
report to his probation officer, as the record reflects that petitioner reported to his probation officer
upon returning home from his camping trip.

       We disagree. This Court has long recognized that “[p]robation is a matter of grace and not
a matter of right.” Syl. Pt. 1, State v. Rose, 156 W. Va. 342, 192 S.E.2d 884 (1972). Here, regardless
of any determination of whether or not petitioner “absconded supervision,” the circuit court was
within its discretion, pursuant to West Virginia Code § 62-12-10(c), to revoke petitioner’s
probations for the violations described herein. West Virginia Code § 62-12-10(c) provides, in
pertinent part, that “. . . a judge may otherwise depart from the sentence limitations set forth in
subdivision (2), subsection (a) of this section upon making specific written findings of fact
supporting the basis for the departure.”

        The circuit court’s revocation of petitioner’s probation is supported by testimony from the
final revocation hearing, including direct admissions from petitioner that he knowingly violated
express terms of his probation. In its amended order revoking petitioner’s probation, the court
specifically found petitioner’s contention that a broken phone prohibited his communication with
his probation office to be “unpersuasive” and reasoned that “[t]here is no rational way the [c]ourt
can excuse [petitioner’s] failure to make a phone call to the probation office – officer and keep
him notified as to what was going on.”4 Further, as the court referenced in its colloquy with
petitioner at the revocation hearing that petitioner was well aware of the conditions of his probation
and:

        The court:      You had a thirty-one count indictment. You pled that down to five counts.
                        I let them all run concurrently. You could have been sentenced from five
                        years to forty-three years in the penitentiary. And I put you on probation.
                        And, I think I told you zero tolerance when I put you on probation. Do you
                        recall that?

        Petitioner:     Yes sir


        4
         During the revocation hearing, when questioned as to whether he was concerned about
the police being at his residence on the night of the overdose incident, petitioner replied “[y]es and
I was concerned about talking to them, but I was just scared. I was just scared of the outcome. I’ve
been doing real well and then something bad happens. It was just hard to deal with.”
                                                   4
       The court:      You know what zero means?

       Petitioner:     Yes sir.

                                      *        *       *

       The court:      . . . You know better than to be hanging around this guy. All the years
                       you’re facing or could have faced, I’d have run in the house and locked the
                       door, even called the police and say there’s a guy out here with alcohol and
                       I can’t be around it. But, you didn’t do that.

Based on such findings, and the limited facts and circumstances of this case, we find that the court
did not abuse its discretion in revoking petitioner’s probation.

       For the foregoing reasons, we affirm the circuit court’s October 1, 2018, amended order
revoking petitioner’s probation.


                                                                                         Affirmed.


ISSUED: January 13, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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