State of West Virginia v. Jerry Lee Hedrick ( 2015 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2015 Term
FILED
October 7, 2015
released at 3:00 p.m.
RORY L. PERRY II, CLERK
Nos. 14-0484 and 14-1198 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
JERRY LEE HEDRICK,
Defendant Below, Petitioner
Consolidated Appeals from the Circuit Court of Mineral County
The Honorable Phil Jordan, Judge
Criminal Case No. 09-F-58
AFFIRMED, IN PART, REVERSED, IN PART,
AND REMANDED
Submitted: September 23, 2015
Filed: October 7, 2015
Nicholas T. James, Esq. Patrick Morrisey, Esq.
The James Law Firm, PLLC Attorney General
Keyser, West Virginia Benjamin F. Yancey, III, Esq.
Lonnie Simmons, Esq. Assistant Attorney General
DiTrapano Barrett DiPiero Charleston, West Virginia
McGinley & Simmons Counsel for the Respondent
Charleston, West Virginia
Counsel for the Petitioner
JUSTICE KETCHUM delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “‘The Supreme Court of Appeals reviews sentencing orders . . . under a
deferential abuse of discretion standard, unless the order violates statutory or constitutional
commands.’ Syllabus Point 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221
(1997).” Syl. pt. 1, State v. Watkins, 214 W.Va. 477, 590 S.E.2d 670 (2003).
2. “The suspension of a sentence coupled with probation is a critical stage of the trial
proceedings and due process of law, therefore, requires that an accused be furnished the
assistance of counsel and that counsel be present when the terms or conditions of probation
are established or modified.” Syl. pt. 3, Louk v. Haynes, 159 W.Va. 482, 223 S.E.2d 780
(1976).
Justice Ketchum:
These consolidated appeals concern supervised release mandated for certain sex
offenses pursuant to W.Va. Code, 62-12-26 [2009]. The petitioner, Jerry Lee Hedrick, was
convicted in Mineral County of two counts of sexual abuse in the first degree, and his
sentence included placement on supervised release for twenty-five years. Hedrick first
served consecutive terms in the penitentiary and was placed on parole. His supervised
release commenced upon his discharge from parole.
Hedrick is the principal owner of a vacation facility, open to the public, known as
Smoke Hole Caverns and Resort. Until recently, he was a long-term resident on the property.
The terms of Hedrick’s supervised release require him to comply with a number of conditions
governing his conduct. Appeal no. 14-0484 concerns Hedrick’s challenge to two of those
conditions: (1) that he is not to be employed at Smoke Hole Caverns and Resort in any
capacity and (2) that he is not to visit Smoke Hole Caverns and Resort, including the gift
shop located on the property. The circuit court denied Hedrick’s motion to strike those
conditions. Hedrick asks this Court to reverse and direct the circuit court to strike those
conditions from the terms of his supervised release.
1
Appeal no. 14-1198 arose from the State’s petition to revoke Hedrick’s supervised
release for alleged transgressions, such as possessing ammunition and locking a gate to a
farm owned by Hedrick in Pendleton County. The circuit court declined to revoke Hedrick’s
supervised release. However, the court, sua sponte, entered an order which set forth
additional conditions governing Hedrick’s conduct. One of those conditions banned him
from his Pendleton County farm. Hedrick asserts that the additional conditions are
unreasonable and that the circuit court abused its discretion in imposing them.
For the reasons stated below, this Court upholds the two conditions in appeal no. 14­
0484, banning Hedrick from Smoke Hole Caverns and Resort. We also uphold the additional
conditions at issue in appeal no. 14-1198, except for the condition banning Hedrick from his
Pendleton County farm. Procedural due process mandates that we reverse the ruling of the
circuit court as to that condition and remand this case for a hearing at which Hedrick shall
have the right to have his counsel present. In all other respects, the final orders in these
consolidated appeals are affirmed.
I. Appeal No. 14-0484
Factual and Procedural Background
Smoke Hole Caverns and Resort, located in Grant County, was purchased by Hedrick
in 1977 and is a family business which Hedrick operated with his wife and their three grown
children. Hedrick and his wife are majority and minority owners of the business,
2
respectively. The Resort includes a maintenance complex which houses Hedrick’s
equipment, machinery and tools. Hedrick’s marital residence was on the property. Hedrick
and his wife are now estranged, and Hedrick resides elsewhere at this time. In addition to
his Resort ownership, Hedrick owns various tracts of land, including a farm in Pendleton
County and in Bath County, Virginia.1
In July 2008, a Grant County grand jury returned an indictment charging Hedrick with
two counts of sexual abuse in the first degree under W.Va. Code, 61-8B-7(a)(1) [2006].
According to the State, Hedrick, forcibly touched the buttocks and breasts of a twenty-five
year old female employed as a housekeeper at the Resort.2 The victim left the premises and
never returned to her employment.
Venue was transferred to Mineral County on Hedrick’s motion, and a trial was
conducted in May 2009. Hedrick was found guilty on both counts. On September 9, 2009,
Hedrick signed an acknowledgment of sex offender registration requirements, and on
October 21, 2009, he signed a document entitled “Sex Offender Conditions.” Although the
document allowed for other conditions “as appropriate,” it did not address Hedrick’s
1
The appendix record includes a pre-sentence investigation report showing that, as
of 2004, Hedrick’s assets exceeded $7,000,000.
2
W.Va. Code, 61-8B-7(a)(1) [2006], states that a person is guilty of sexual abuse
in the first degree when such person “subjects another person to sexual contact without
their consent, and the lack of consent results from forcible compulsion.”
3
employment or presence at Smoke Hole Caverns and Resort.
On October 26, 2009, the circuit court entered an order sentencing Hedrick to two
consecutive penitentiary terms of one to five years and directed him to pay a fine of $10,000
on each count. The order further directed that Hedrick would be under supervised release
for twenty-five years following full discharge of his sentence or after completion of parole,
whichever is applicable. The supervised release was imposed pursuant to W.Va. Code, 62­
12-26 [2009]. That statute provides that criminal defendants convicted of certain sex
offenses, including sexual abuse in the first degree, shall be required to serve a period of
supervised release, “in addition to any other penalty or condition imposed by the court.” No
specific conditions associated with supervised release were imposed by the circuit court in
the October 26, 2009, order.
Hedrick’s initial appeal to this Court was accepted solely to consider the
constitutionality of the supervised release portion of his sentence. His appeal was
consolidated in State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011), with the appeals of
two other defendants convicted of sex related offenses. Rejecting the appellants’
constitutional challenges, this Court, in James, concluded that W.Va. Code, 62-12-26 [2009],
was neither impermissibly vague nor violated a criminal defendant’s right to a jury
determination of relevant factual matters. Therefore, the statute did not violate the
4
appellants’ right to due process of law. This Court further concluded, in James, that the
statute did not violate constitutional protections against cruel and unusual punishment and
double jeopardy. However, in James, this Court noted that an evaluation of Hedrick
indicated that he was “at least at a moderate risk for recidivism and reoffending.” 227 W.Va.
at 417, 710 S.E.2d at 108.
Hedrick was placed on parole following his incarceration in the penitentiary.
Although, initially, he was not allowed to enter the Resort property, that restriction was lifted
by his parole officer. Hedrick’s wife, however, obtained an emergency domestic violence
protective order from the Grant County Family Court barring him from the property. The
appendix record does not disclose the grounds for the emergency order. That order was
terminated by the Family Court in September 2013. Hedrick was discharged from parole on
January 14, 2014. His twenty-five year term of supervised release commenced at that time.
Soon after, Hedrick signed two forms pertaining to his supervised release. On January
21, 2014, Hedrick signed a form entitled “Rules and Regulations Governing Probationers”
which set forth various conditions of release, including a handwritten restriction that Hedrick
was “not to be employed at Smoke Hole Resort in any capacity.” Two days later, on January
23, 2014, Hedrick signed an additional form entitled “Terms and Conditions of Supervised
Release” which set forth other conditions, including a handwritten restriction providing that
5
Hedrick could have “no employment or visitation at Smoke Hole Caverns or gift shop
property as defined in the general terms.”3 The Terms and Conditions of Supervised Release
form further provided that Hedrick would conform his conduct “to such additional
requirements as the Probation Officer may from time to time temporarily impose as the
circumstances warrant.”
Only the signature of Hedrick and the signatures of probation officers appear on the
two forms. The probation officers were the source of the handwritten conditions. Hedrick
signed the forms out of the presence of his counsel and approximately four years after the
entry of the 2009 sentencing order which initially directed that Hedrick would be under
supervised release.
In February 2014, Hedrick’s counsel filed a motion in the circuit court to strike the
two handwritten conditions prohibiting Hedrick from employment and visitation at the
Resort. Asserting abuse of discretion in imposing the conditions, the motion alleged that
Hedrick had completed his prison term and period of parole without any disciplinary
problems and that he had paid all restitution and court costs. In addition, the motion alleged
that Hedrick had been employed at the Resort since 1977 and that the two conditions were
3
Some of the conditions set forth in the two forms overlapped, such as the
directive to remain gainfully employed and the prohibition against possessing firearms.
6
inconsistent with the requirement of his supervised release that he remain gainfully
employed. Moreover, the motion to strike alleged that the two conditions unfairly deprived
Hedrick of his property.
Following a hearing in March 2014, at which Hedrick was represented by counsel, the
circuit court denied the motion to strike. The motion was again denied in a final order
entered on August 18, 2014. Enforcing the two handwritten conditions barring Hedrick from
Smoke Hole Caverns and Resort, the circuit court concluded that the conditions were
reasonable because, as “one of the most hated people in Grant County,” Hedrick’s presence
at the Resort could have a negative economic impact on the business. The circuit court
further concluded that the two conditions do not unfairly deprive Hedrick of his property.4
The appeal to this Court, no. 14-0484, followed.
II. Appeal No. 14-1198
Factual and Procedural Background
In September 2014, the Grant County prosecutor filed a petition in the Circuit Court
of Mineral County to revoke Hedrick’s supervised release. Although the petition described
Hedrick’s alleged violations as largely “technical,” the relief sought was a transfer of Hedrick
4
The circuit court noted that the offenses resulting in Hedrick’s convictions
occurred on the Resort property.
7
to the West Virginia Department of Corrections for incarceration. The State’s allegations,
and Hedrick’s responses, were the subject of an evidentiary hearing conducted on September
22, 2014, at which Hedrick was represented by counsel.
The evidence of the State was that on February 12, 2014, probation officers found
ammunition and fireworks at Hedrick’s Pendleton County farm in an old house used for
storage. The house was in disrepair and unoccupied. Both the Rules and Regulations
Governing Probationers and the Terms and Conditions of Supervised Release, signed by
Hedrick, prohibited him from owning or possessing any firearms or other lethal weapon,
including gunpowder. Hedrick denied knowledge of the items. His son, Josh, age thirty-five,
testified that the ammunition and fireworks were his and not Hedrick’s and had been
forgotten, since the items had been in the storage building from the time Josh was in middle
school.
The State’s next allegation was that, in July 2014, an officer observed some
ammunition in an ATV 4-wheeler parked on Hedrick’s Pendleton County farm. Hedrick
testified that he did not know who owned the ATV and submitted evidence to the effect that
vehicles commonly traverse, or park, on the property because of a right-of-way belonging to
neighboring farms. Shaylon Miller testified at the hearing that he owns a neighboring farm
with a right-of-way over Hedrick’s land and that the ATV and the ammunition belonged to
8
the Miller family.
The State also alleged that, in August 2014, Hedrick failed to keep his supervision
officer informed of his in-State travel plans when he left the county for several days to attend
the West Virginia State Fair in Lewisburg. Although Hedrick left a message on the officer’s
cell phone stating that he was leaving for the State Fair, he did not keep the officer informed
about how long he would be gone or where he would be staying. While at the Fair, Hedrick
spent several hours talking to family members, and others, at a promotional booth operated
by Smoke Hole Caverns and Resort. One of Hedrick’s family members testified that his
presence at the booth made her feel uncomfortable. The State asserted that the banning of
Hedrick from the Resort should be interpreted to include the Resort’s promotional booth at
the State Fair in Lewisburg.
In response, Hedrick testified that, while at the State Fair, he made a second call to
his supervision officer but was unable to reach him. Hedrick was gone for four nights,
sleeping in his truck for two nights and at a motel for two nights. Hedrick testified that his
purpose in going to the Fair was to visit with his grandchildren.
Finally, the State alleged that Hedrick committed a violation on August 16, 2014,
when he locked the gate to his Pendleton County farm and parked his vehicle behind a barn.
9
The State asserted that Hedrick was told to keep the gate unlocked when he was on the
property so that officers could determine his whereabouts. Hedrick denied that any
conversation about locking the gate took place and asserted that the lock was for the
protection of his livestock and farm equipment. Hedrick raises cattle and dogs on the
property. Hedrick stated that a swinging bridge in the area provides an alternative means of
accessing his property.
At the conclusion of the hearing, the circuit court indicated that the conditions of
Hedrick’s supervised release needed clarification and that a hearing for that purpose was
warranted.5 The hearing, however, was never conducted.
Instead, on October 29, 2014, the circuit court entered a final order with the following
findings: (1) Based on the testimony of Hedrick’s son, the presence of the ammunition and
fireworks in the storage building on the Pendleton County farm was not a violation of
Hedrick’s supervised release; (2) however, the presence of the ammunition in the ATV was
a “technical” violation; (3) the locking of the gate and the parking of Hedrick’s vehicle in a
concealed manner on the Pendleton County farm constituted efforts to evade supervision and
were violations of Hedrick’s supervised release; (4) Hedrick’s failure to inform his
5
The circuit court stated: “I believe under the code I have to give, anybody
changing the rules had to give notice of that hearing and some idea what those changes
are going to be.”
10
supervision officer of his in-State travel to the State Fair, although a transgression of the
spirit of the terms of Hedrick’s supervised release, was not a violation; (5) similarly,
Hedrick’s presence at the promotional booth, although a transgression of the spirit of the
order prohibiting him from Resort property, was not a violation.
Upon those findings, the circuit court imposed the following additional conditions of
Hedrick’s supervised release:
I. Effective January 1, 2015, “Jerry Hedrick is prohibited from going to
the 500+ acre farm in [Pendleton] County.”
II. “The ban of Jerry Hedrick entering Smoke Hole Caverns Property
and maintenance complex is hereby expanded to include any and all off-site
locations that Smoke Hole Caverns may use to promote or conduct business.
This includes, but is not limited to, the annual booth at the State Fair and any
booths set up at local fairs or festivals. This is effective immediately.”
III. “Jerry Hedrick may not travel overnight in-state without expressed
permission from ISO [Hedrick’s Intensive Supervision Officer]. He must
provide details of his plans including where he will stay and any other
information requested by ISO. He may not attend the West Virginia State
Fair.”
IV. Finally, noting that Hedrick was previously convicted of a federal
wildlife felony, the circuit court stated: “Jerry Hedrick is hereby prohibited
from participating in all hunting activities. He cannot accompany other
hunters into the woods or fields. This is effective immediately.”
The October 29, 2014, order concluded: “Serving 25 years in prison is hanging over
his head. Any future violations will likely result in Mr. Hedrick’s dying in prison.” The
11
appeal to this Court, no. 14-1198, followed.6
III. Standard of Review
This Court’s standard of review is the same as to both Hedrick’s appeal from the
August 18, 2014, order, no 14-0484, denying his motion to strike the two handwritten
conditions and his appeal from the October 29, 2014, order, no 14-1198, which set forth
additional conditions I through IV of his supervised release. In syllabus point 4 of Burgess
v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996), we stated: “This Court reviews the
circuit court’s final order and ultimate disposition under an abuse of discretion standard. We
review challenges to findings of fact under a clearly erroneous standard; conclusions of law
are reviewed de novo.” Accord syl. pt. 1, State v. Messer, 223 W.Va. 197, 672 S.E.2d 333
(2008); syl. pt. 1, State v. Davis, 199 W.Va. 84, 483 S.E.2d 84 (1996).
Moreover, the conditions at issue in both appeals are derivative of Hedrick’s original
sentencing order, entered in 2009, which directed that he would be under supervised release
for twenty-five years following the discharge of his sentence or after completion of parole.
Thus, in syllabus point 1 of State v. Watkins, 214 W.Va. 477, 590 S.E.2d 670 (2003), this
Court confirmed the following standard of review with regard to sentencing orders in
6
In December 2014, the circuit court entered a stay of the October 29, 2014, order,
as it specifically relates to the ban from the Pendleton County farm, on the condition that
Hedrick immediately provides a key to the gate to his supervision officer.
12
criminal cases: “‘The Supreme Court of Appeals reviews sentencing orders . . . under
a deferential abuse of discretion standard, unless the order violates statutory or constitutional
commands.’ Syllabus Point 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221
(1997).” Accord syl. pt. 1, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011).
IV. Discussion
A.
Appeal No. 14-0484
The Handwritten Conditions
Hedrick contends that his right to procedural due process was violated because the
two handwritten conditions prohibiting him from employment and visitation at Smoke Hole
Caverns and Resort, in Grant County, were imposed outside the presence of his counsel.
Thus, according to Hedrick, the conditions were void ab initio.7 In addition, Hedrick
contends that the two handwritten conditions are unreasonable and, therefore, should have
been eliminated from the terms of his supervised release.
At the time of Hedrick’s sentencing in 2009, supervised release was authorized
pursuant to W.Va. Code, 62-12-26 [2009].8 That statute provides that criminal defendants
7
U.S. Const. Amend V and amend. XIV provide that no person shall be deprived
of life, liberty or property without due process of law. Similarly, W.Va. Const. Art. III, §
10, provides that no person shall be deprived of life, liberty or property without due
process of law.
8
Subsequent amendments of W.Va. Code, 62-12-26 [2009], are not applicable in
this case.
13
convicted of certain sex offenses, including the offense of sexual abuse in the first degree,
shall be required to serve a period of supervised release, “in addition to any other penalty or
condition imposed by the court.” In this case, Hedrick’s supervised release, although
imposed at sentencing, commenced upon his discharge from parole.
W.Va. Code, 62-12-26 [2009], provides, in subsections (a) and (g), that supervised
release is subject to modification. Subsection (g) states, in relevant part, that the circuit court
may:
Extend a period of supervised release if less than the maximum
authorized period was previously imposed or modify, reduce or enlarge the
conditions of supervised release, at any time prior to the expiration or
termination of the term of supervised release, consistent with the provisions of
the West Virginia Rules of Criminal Procedure relating to the modification of
probation and the provisions applicable to the initial setting of the terms and
conditions of post-release supervision.
(emphasis added)
Moreover, under subsection (g) of W.Va. Code, 62-12-26 [2009], the circuit court may
revoke a term of supervised release and require the defendant to serve in prison all or part
of the term of supervised release “if the court, pursuant to the West Virginia Rules of
Criminal Procedure applicable to revocation of probation, finds by clear and convincing
evidence that the defendant violated a condition of supervised release.”
14
The reference in subsection (g) to the Rules of Criminal Procedure relating to the
modification of probation is of importance to Hedrick’s assertion of a procedural due process
violation. Rule 32.1.(b) of the West Virginia Rules of Criminal Procedure addresses the
modification of probation and states, in part: “A hearing and assistance of counsel are
required before the terms of probation can be modified.”
A procedural due process violation was discussed in Louk v. Haynes, 159 W.Va. 482,
223 S.E.2d 780 (1976). Among the terms of the petitioner’s probation, in Louk, were the
conditions that he live and work on a certain farm and that the farm owner would become the
petitioner’s “volunteer probation officer.” Those requirements were imposed by the trial
court in the absence of the petitioner’s counsel. The petitioner subsequently left the farm,
and his probation was revoked. Reinstating probation, this Court, in Louk, concluded:
To the extent, however, that the conditions were established or modified
by the trial court in the absence of the petitioner and his counsel, they are void
as violative of procedural due process. The conditions, therefore, which
required the petitioner to live and work on the Isner farm and the provision
substituting J. Herman Isner as a voluntary probation officer, having been in
the first instance established in the absence of counsel and in the second
instance modified in the absence of the petitioner and his counsel, are void and
unenforceable.
159 W.Va. at 493, 223 S.E.2d at 788.
Accordingly, in syllabus point 3 of Louk we held:
15
The suspension of a sentence coupled with probation is a critical stage
of the trial proceedings and due process of law, therefore, requires that an
accused be furnished the assistance of counsel and that counsel be present
when the terms or conditions of probation are established or modified.
Accord State v. Duke, 200 W.Va. 356, 365, 489 S.E.2d 738, 747 (1997).9
Hedrick’s circumstances, however, are significantly different from those in Louk. It
is true that the two handwritten conditions were imposed out of the presence of Hedrick’s
counsel, through the “Rules and Regulations Governing Probationers” form and the “Terms
and Conditions of Supervised Release” form. Hedrick signed those forms in late January
2014. Almost immediately, in February 2014, Hedrick’s counsel filed the motion in the
circuit court to strike those conditions. The motion was filed in the absence of any
allegations by the State that Hedrick had violated the conditions by stepping foot on the
Resort property. Hedrick simply challenged the merits of the two conditions in a prompt
manner. His motion to strike resulted in the March 2014 hearing before the circuit court at
which he was represented by counsel. The circuit court denied the motion in a well-reasoned
final order entered on August 18, 2014. Such a proceeding did not occur in Louk. Hedrick’s
assertion of a denial of procedural due process, in appeal no. 14-0484, is without merit.
9
We observed, in Louk, that the liberty of an accused “is no less ‘affected’ because
probation is considered an act of grace. Due process cannot be denied a probationer by
such reasoning. Every condition of probation constitutes a restriction of liberty and
violation of any condition may result in imprisonment.” (citations omitted) 159 W.Va. at
492-93, 223 S.E.2d at 787.
16
Hedrick further contends that the two handwritten conditions prohibiting him from
employment and visitation at Smoke Hole Caverns and Resort, in Grant County, are
unreasonable. In support, Hedrick emphasizes that, having purchased the property in 1977,
he is the majority owner of the business and considers the Resort to be his place of residence
and employment. He also emphasizes that he has a maintenance complex at the Resort which
houses his equipment, machinery and tools. Finally, Hedrick states that the female victim
of his sexual abuse convictions is no longer present on the property and that he completed
his periods of incarceration and parole without any disciplinary problems.
This Court noted, in Louk, that any condition of probation imposed in the discretion
of a circuit court must be reasonable. Louk, however, distinguished the placement of a
probationer at a specific employment location from a directive prohibiting certain
employment. This Court, in Louk, stated: “We do not here imply that prohibiting certain
employment during the term of probation is beyond the authority of the trial judge. Indeed,
it may be entirely proper, considering the nature of the crime, to isolate and insulate the
defendant from certain temptations.” (emphasis added) 159 W.Va. at 495, 223 S.E.2d at
789. That admonition suggests the “deferential abuse of discretion” standard of review of
Watkins and Lucas, supra, to be utilized on this issue.
While Hedrick insists that his residence and employment is on the property, Smoke
17
Hole Caverns and Resort is a vacation facility open to the public. In James, supra, wherein
Hedrick challenged the constitutionality of W.Va. Code, 62-12-26 [2009], this Court referred
to an evaluation of Hedrick which stated that he was “at least at a moderate risk for
recidivism and reoffending.” 227 W.Va. at 417, 710 S.E.2d at 108.10 Moreover, during the
March 2014 hearing on the motion to strike, the circuit court commented that it was
“common knowledge in the county that Mr. Hedrick was a concern for the young girls that
worked there as well as the other women” and that, in moving for a change of venue in the
underlying trial, Hedrick’s counsel stated that Hedrick “was the most hated man in Grant
County.” In the latter regard, the circuit court indicated that Hedrick’s reputation would
“hurt getting employees” for the Resort and that Hedrick’s financial interest in the property
would be enhanced by his absence. Hedrick owns other tracts of land, including a farm in
Pendleton County and in Bath County, Virginia. Finally, as the State points out, Hedrick has
access to at least some of his equipment, machinery and tools through his son.
10
The opinion in James described Hedrick’s offenses as follows:
Although Mr. Hedrick’s case did not involve a minor, crimes of
violence against the person were nonetheless involved. The twenty-five-old
victim of Mr. Hedrick’s uninvited and unwelcome sexual advances was an
employee - a subordinate requesting time off from her boss. Mr. Hedrick
took advantage of this disparate relationship and attempted to intimidate the
young woman (who was thirty years his junior) in order to obtain sexual
favors. The victim was so shaken by the experience that she never returned
to the workplace.
227 W.Va. at 417, 710 S.E.2d at 108.
18
Hedrick’s challenge to the two handwritten conditions prohibiting him from Smoke
Hole Caverns and Resort must give way to protecting the public from future offenses. See
United States v. Henson, 22 Fed. Appx. 107 (4th Cir. 2001) (“A special condition of
supervised release may restrict fundamental rights when the special condition is narrowly
tailored and is directly related to deterring the defendant and protecting the public.”) (internal
quotation omitted). We find that the two handwritten conditions are reasonable and that the
circuit court did not abuse its discretion in denying Hedrick’s motion to strike.
B.
Appeal No. 14-1198
The Additional Conditions
This appeal arose from the Grant County prosecutor’s September 2014 petition to
revoke Hedrick’s supervised release and transfer Hedrick to the Department of Corrections
for incarceration. The Circuit Court of Mineral County conducted an evidentiary hearing on
September 22, 2014, at which Hedrick was represented by counsel. The circuit court
declined to revoke Hedrick’s supervised release. However, the court, sua sponte, entered an
order on October 29, 2014, which set forth additional conditions governing Hedrick’s
conduct. Those conditions (1) prohibited Hedrick from going to his 500+ acre farm in
Pendleton County; (2) banned him from all off-site locations that Smoke Hole Caverns and
Resort may use to promote or conduct business; (3) mandated that Hedrick provide detailed
information and obtain permission from his supervision officer with regard to overnight, in­
19
State travel, and, furthermore, prohibited Hedrick from attending the State Fair; and (4)
prohibited Hedrick from all hunting activities.
Hedrick contends that his right to procedural due process was violated because the
new conditions were imposed without the further hearing the circuit court mentioned during
the evidentiary hearing of September 22, 2014. Hedrick further contends that the additional
conditions are unreasonable.
Hedrick’s due process assertion again implicates the provisions of W.Va. Code, 62-12­
26(g) [2009], W.Va. R. Crim. P. 32.1.(b), and Louk for the principle that a hearing and
assistance of counsel are required before the terms of probation, or supervised release, can
be modified. Moreover, Hedrick cites W.Va. Code, 62-12-26(h) [2009], which states that the
defendant shall be provided with a written statement “at the defendant’s sentencing hearing
that sets forth all the conditions to which the term of supervised release is subject.” (emphasis
added)
As to Hedrick’s latter point, however, the document entitled “Sex Offender
Conditions” he signed in October 2009, just prior to his sentencing, allowed for other
conditions “as appropriate.” In addition, the “Terms and Conditions of Supervised Release”
form signed in January 2014 provided that Hedrick would conform his conduct “to such
20
additional requirements as the Probation Officer may from time to time temporarily impose
as the circumstances warrant.” Manifestly, as the State points out, changes along the way are
necessary to effectuate supervised release. Hedrick’s locking the gate to his farm and his
presence at the State Fair are matters which arose later in time.
The remainder of Hedrick’s due process assertion is also without merit. All four
conditions added by the circuit court to the terms of Hedrick’s supervised release were
derivative of the allegations in the State’s petition to revoke, as well as the evidence
submitted by both parties at the September 22, 2014, hearing. Although another hearing was
not conducted, the September 22, 2014, hearing constituted a de facto proceeding on the
merits of the additional conditions, during which Hedrick was represented by counsel.
Louk stands for the proposition that any condition of probation which is “imposed in
the discretion of the trial court must be reasonable.” 159 W.Va. at 495, 223 S.E.2d at 788.
In the current matter, Hedrick does not contest condition III which addresses his overnight,
in-State travel. He does contest, however, his ban from the Resort’s off-site locations, such
as its promotional booth at the State Fair. This Court is of the opinion that Hedrick’s claim
of unreasonableness on that point is difficult to sustain in view of the evidence before the
circuit court. While at the Fair, Hedrick spent considerable time talking to family members
and others at the Resort’s promotional booth. In imposing the ban, the circuit court stated
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in the October 29, 2014, order:
The Court finds that Mr. Hedrick hung around the Smoke Hole Caverns
booth at the State Fair for several days. Mr. Hedrick was aware that the Court
had previously prohibited him from Smoke Hole premises. This was not a
violation of the language of that Order. It was, however, another huge breach
of the spirit of that Court Order.
The appendix record reveals that Hedrick’s presence at the promotional booth was
uncomfortable to members of his family and was potentially detrimental to the Resort’s
business. The condition is reasonable, and the circuit court did not abuse its discretion in
imposing it as part of Hedrick’s supervised release.
The prohibition of Hedrick from all hunting activities was likewise reasonable and
within the circuit court’s discretion. In imposing that condition, the circuit court emphasized
that, in addition to Hedrick’s ban from owning or possessing firearms or other lethal
weapons, he was previously convicted of a federal, wildlife felony.
Finally, in the October 29, 2014, order, the circuit court added the condition that
Hedrick is prohibited from his 500+ acre farm in Pendleton County. That condition was
grounded on the State’s allegation that Hedrick had violated his supervised release by
possessing ammunition and fireworks, locking the gate to the farm, and parking his vehicle
in a concealed manner.
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Following the September 22, 2014, hearing, the circuit court found that the
ammunition and fireworks found in the storage building belonged to Hedrick’s son, had been
in the bulding many years, and did not constitute a violation of Hedrick’s supervised release.
The presence of the ammunition in the ATV, however, was determined to be a “technical”
violation. Nevertheless, the evidence submitted by Hedrick demonstrated that the
ammunition belonged to a neighbor and that vehicles, such as ATVs, commonly traverse, or
park, on the property by virtue of a right-of-way belonging to neighboring farms. Moreover,
although the circuit court found that locking the gate and parking the vehicle in a concealed
manner were violations, Hedrick maintained that those matters were never previously
included in the terms of his supervised release. In addition, he explained that he began
locking the gate to protect his livestock and farm equipment and that a swinging bridge in
the area provides an alternative means of accessing his property. Finally, Hedrick testified
that his vehicle was never concealed. Rather, it was parked at his barn to keep it out of the
heat on warm days and to unload supplies.
Hedrick uses the 500 acre farm to raise cattle and dogs. The available evidence
indicates that he alone tends the property and animals. In imposing the prohibition, no
provision was set forth in the October 29, 2014, order concerning the prospective
maintenance of the farm, and no reference was made to the farm in relation to Hedrick’s
underlying convictions. If Hedrick violates this condition by stepping foot on the farm, he
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potentially faces twenty-five years of incarceration. Without eliminating this condition as
a matter of law, this Court finds the prohibition of Hedrick from his Pendleton County farm
highly restrictive and on the borderline of reasonable discretion. The prohibition warrants
a more detailed analysis by the circuit court. We, therefore, remand this case to the circuit
court on this limited issue.
V. Conclusion
This Court affirms the August 18, 2014, order of the Circuit Court of Mineral County,
in appeal no. 14-0484, which denied Hedrick’s motion to strike the two handwritten
conditions prohibiting him from employment and visitation at Smoke Hole Caverns and
Resort. In appeal no. 14-1198, we affirm the circuit court’s October 29, 2014, order which
sets forth additional conditions of Hedrick’s supervised release, except for the condition
banning Hedrick from his Pendleton County farm. We reverse the October 29, 2014, order
as to that condition and remand this case for a hearing at which Hedrick shall have the right
to have his counsel present. Thereafter, the circuit court shall enter a final order with
findings of fact and conclusions of law on whether Hedrick should be prohibited from his
Pendleton County farm.
Affirmed, in part, Reversed, in part, and Remanded.
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