State of West Virginia v. Shawn E. Hann ( 2014 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent April 28, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 13-1050 (Morgan County 10-F-42) OF WEST VIRGINIA
Shawn E. Hann,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Shawn Hann, by counsel Shawn McDermott, appeals the Circuit Court of
Morgan County’s July 31, 2013, order denying his motion for reconsideration of his sentence.
The State, by counsel Julie Warren, filed a response. On appeal, petitioner alleges that the circuit
court erred in denying his motion for correction and/or reduction of sentence and failing to
consider the amended probation revocation statute during the hearing.
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.
On April 13, 2010, petitioner was indicted by the Morgan County Grand Jury on one
count of attempted delivery of marijuana and six separate counts of possession with the intent to
deliver marijuana, Suboxone, Percocet, Lorazepam, Hydrocodone, and Opana. After
negotiations, petitioner pled guilty to one count of possession with the intent to deliver marijuana
and one count of possession with the intent to deliver Percocet in violation of West Virginia
Code § 60A-4-401(a). On November 16, 2010, petitioner was sentenced to a term of
incarceration of one to five years for possession with the intent to deliver marijuana and a
consecutive term of incarceration of one to fifteen years for possession with intent to deliver
Percocet. The circuit court then suspended the sentence and placed petitioner on probation for a
period of five years.
On January 28, 2013, petitioner was arrested and charged in Berkeley County with one
count of possession with intent to deliver Xanax, one count of improper vehicle registration, one
count of no proof of automobile insurance, one count of receiving/transferring stolen property,
and one count of possession of thirty Xanax pills that were not prescribed to him. Shortly after
his arrest, petitioner’s probation officer filed a petition for revocation of probation based upon
his arrest and petitioner’s failure to pay his probation supervision fees for twenty-three months.
The circuit court held a probation revocation hearing on March 4, 2013. At the conclusion of the
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hearing, the circuit court found that petitioner admitted to the allegations in the petition and
revoked his probation. The circuit court re-imposed petitioner’s original sentence with credit for
time served.
Petitioner appealed the circuit court’s order revoking his probation to this Court. By order
entered on January 17, 2014, this Court affirmed the circuit court’s revocation. See State v.
Shawn Hann, No. 13-0419 (W.Va. Supreme Court, January 17, 2014)(memorandum decision).1
Petitioner then filed a motion with the circuit court for reconsideration of his sentence
pursuant to Rule 35 of the West Virginia Rules of Criminal Procedure requesting that he be
placed back on probation. Following a hearing on petitioner’s motion, the circuit court denied
petitioner’s motion by order entered on July 31, 2013. It is from this order that petitioner now
appeals.
In regard to motions made pursuant to Rule 35, we have previously held that
“[i]n reviewing the findings of fact and conclusions of law of a circuit
court concerning an order on a motion made under Rule 35 of the West Virginia
Rules of Criminal Procedure, we apply a three-pronged standard of review. We
review the decision on the Rule 35 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. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).
Syl. Pt. 1, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010).
On appeal, petitioner argues that the circuit court illegally reimposed his sentence
following his probation revocation hearing because the circuit court did not have a basis on
which to determine that he violated his probation.
Upon our review, the Court finds that petitioner’s sentence is legal and he is not entitled
to relief under Rule 35. West Virginia Code § 62-12-10 (1955) states, 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 state that “[petitioner] shall not violate any laws of
this state, any other state, any municipality or the United States.” Here, it is undisputed that
petitioner admitted to the factual allegations in the State’s motion to revoke his probation. “The
reason probation can be revoked without an underlying conviction is because a probation
revocation proceeding does not involve a determination of the defendant’s guilt . . . . [T]he fact
that the criminal charges were dismissed [] does not prevent the subsequent use of these charges
in a probation revocation proceeding.” State v. Ketchum, 169 W.Va. 9, 12-13, 289 S.E.2d 657,
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Petitioner filed a petition for rehearing on February 18, 2014, which was refused by this
Court on March 25, 2014.
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658-59 (1981). Importantly, a review of the record shows that petitioner pled guilty to one count
of no proof of automobile insurance.2 This violation of the law clearly authorizes the revocation
of probation under these circumstances.3 Therefore, this Court declines to find that the circuit
court abused its discretion in denying petitioner’s motion for reconsideration.
Finally, petitioner argues that the circuit court should have applied our current violation
of probation statute because the statute was in effect during his Rule 35 hearing. Petitioner’s
argument includes his assertion that he was subject to only a sixty-day term of incarceration
pursuant to West Virginia Code § 62-12-10.4 After petitioner’s probation was revoked, West
Virginia Code § 62-12-10 was amended so that first- and second-time probation violators would
serve short periods of incarceration for violations of the conditions of probation, rather than
immediate revocation of the suspended sentence. Pursuant to the amended statute, revocation and
imposition of the original sentence is to occur only upon a third violation. See W.Va. Code § 62­
12-10(a)(2). “The 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.” Syl. Pt.
4, Taylor v. State Compensation Com’r, 140 W.Va. 572, 86 S.E.2d 114 (1955). A plain reading
of this statute clearly shows that the Legislature did not include the necessary language for the
statute to apply retrospectively. As such, West Virginia Code § 62-12-10 was intended to operate
prospectively. Importantly, petitioner’s conduct that initiated these probation revocation
proceedings occurred before the amended statute became effective. Thus, we find no merit in
petitioner’s suggestion that he should have been confined for the period set forth in the amended
statute.
For the foregoing reasons, the circuit court’s July 31, 2013, order is hereby affirmed.
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The State later dismissed the charges of one count of possession with intent to deliver
Xanax, one count of improper vehicle registration, one count of receiving/transferring stolen
property, and one count of possession of thirty Xanax pills in Berkeley County.
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Petitioner also argues that the circuit court erred in finding that he willfully failed to pay
his supervision fees. As a term of his probation, petitioner was required to pay a monthly
probation and community corrections fee. Petitioner points out that “[p]robation may not be
revoked for failure to pay . . . costs . . . unless [] [petitioner’s] failure is contumacious.” Syl. Pt.
2, in part, Armstead v. Dale, 170 W.Va. 319, 294 S.E.2d 122 (1982). The record is devoid of any
testimony that indicates that petitioner’s failure to pay these fees prior to the revocation hearing
was contumacious. Further, prior to the revocation hearing, petitioner paid all of his outstanding
supervision fees. That said, it is unnecessary for us to consider the fees issue. “Where probation
is revoked on one valid charge, the fact that other charges may be invalid will not preclude
upholding the revocation.” Syl. Pt. 3, State v. Ketchum, 169 W.Va. 9, 289 S.E.2d 657 (1981).
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West Virginia Code § 62-12-10(a)(2) states that “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 . . . .”
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Affirmed.
ISSUED: April 28, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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