State of West Virginia v. Joseph William Howell, Jr. ( 2022 )

FILED
April 14, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 20-0330 (Randolph County 16-F-104 and 16-F-125)
Joseph William Howell Jr.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Joseph William Howell Jr., by counsel Phillip S. Isner and David C. Fuellhart,
appeals the March 6, 2020, order of the Circuit Court of Randolph County imposing a one-to-five-
year term of incarceration upon his violation of the terms of his probation. The State of West
Virginia, by counsel Patrick Morrisey and William E. Longwell, filed a response in support of the
circuit court’s order. The West Virginia Division of Corrections and Rehabilitation (“DCR”)
intervened, by counsel Briana J. Marino, and also filed a brief.
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.
Many of the facts of the underlying proceedings were discussed in State ex rel. Howell v.
Wilmoth, No. 19-0065, 2019 WL 5709879 (W. Va. Nov. 5, 2019) (memorandum decision)
(“Howell I”). Relevant to the current appeal, petitioner was charged with and convicted of one
count of delivery of a controlled substance 1 and one count of felony conspiracy. 2 Id. at *2. In
March of 2017, the circuit court sentenced petitioner to two one-to-five-year terms of
incarceration, which it ordered to run consecutively. The circuit court “further [ordered] that the
1
See W. Va. Code § 60A-4-401(a)(ii).
2
See W. Va. Code § 61-10-31.
1
execution of the second sentence shall be and is hereby suspended and the [petitioner] shall be
placed on five (5) years of supervised probation with the Randolph County Probation Office upon
release from the first sentence.”
Petitioner was released from incarceration and placed on parole in March of 2018. Upon
his release, petitioner reported to the Randolph County Probation Office and met with his probation
officer. Petitioner was provided the written terms of his probation, which were set to expire in five
years (April of 2023), and he signed those terms. Petitioner’s counsel was also provided a copy of
the terms of petitioner’s probation. Petitioner’s probation and parole was transferred to the State
of Maryland at his request.
In June of 2018, petitioner’s probation officer learned from an anonymous tip that
petitioner was “actively harassing” the tipster, was “observed hanging out with known drug
dealers,” and was “not permitted in town.” The probation officer learned from the State of
Maryland that petitioner was granted permission to return to Randolph County to visit his
grandmother, who was terminally ill, and had not returned to Maryland by the date he was
expected. The probation officer then learned that petitioner “was involved in an incident . . .
wherein . . . petitioner was at his father’s home recklessly discharging a firearm.” Petitioner fled
when law enforcement arrived on the scene and was involved in a high-speed chase. He was finally
apprehended in September of 2018 on charges of fleeing an officer with reckless indifference.
Petitioner then admitted to the probation officer that he had been abusing methamphetamine and
other drugs while avoiding probation supervision. The State filed a petition to revoke petitioner’s
probation based on the foregoing allegations.
The circuit court held a preliminary hearing on petitioner’s probation violation in October
of 2018. At this hearing, petitioner objected, for the first time, to the fact that he was on probation
and moved to dismiss the motion to revoke his probation. Petitioner argued that he had not yet
been “released” from his first sentence because he continued to serve parole for that sentence and,
therefore, his sentence of probation for conspiracy had not yet started. Petitioner waived his
preliminary hearing, and the circuit court granted him time to file a motion and brief his argument.
Petitioner’s later-filed motion to dismiss the probation violation contained no legal authority in
support.
At the November 2018 adjudication hearing on the State’s petition to revoke petitioner’s
probation, petitioner reiterated his argument that he could not have violated his probation because
it could not have begun. Petitioner also moved to dismiss the petition, arguing that the circuit court
was without jurisdiction to rule on the State’s petition because he was not on probation. Ultimately,
the circuit court denied petitioner’s motion to dismiss, finding that “it was the Court’s intention to
place the [petitioner] on probation upon his release from incarceration[]” from his first sentence.
The circuit court stayed the proceedings prior to the adjudication of the State’s petition to revoke
petitioner’s probation in order to allow petitioner an opportunity to file a writ of prohibition with
this Court. On November 5, 2019, this Court denied petitioner’s petition for a writ of prohibition
because petitioner failed to provide the Court with a legal basis to find that the circuit court erred
and because he had other adequate means for relief. Howell I, at *6.
2
In January of 2020, the circuit court reconvened for an adjudication hearing of the State’s
petition to revoke petitioner’s probation. Petitioner argued that this Court’s denial of his writ of
prohibition was not a ruling on the merits of his arguments and again argued that the circuit court
did not have jurisdiction to revoke his probation. After lodging this objection, petitioner stated that
he was willing to stipulate to criminal conduct that would have constituted a violation of the terms
of his probation if he were lawfully subject to those terms. Ultimately, the circuit court found that
petitioner had violated the terms and conditions of his probation. In February of 2020, the circuit
court-imposed petitioner’s underlying one-to-five-year term of incarceration for his conviction of
felony conspiracy. Petitioner now appeals the circuit court’s March 6, 2020, order memorializing
that decision.
On appeal, petitioner argues that the circuit court erred in finding that he violated his
probation and revoking the same because he was not on probation at the time of the alleged
violations. He asserts that the circuit court’s sentencing order provided that his probation would
begin “upon release from the first sentence.” Petitioner believes that in order to be released from
his first sentence he would need to discharge that sentence through incarceration or completing his
parole requirements but neither circumstance occurred. Further, petitioner argues that the circuit
court’s stated intention, that he would serve probation upon his release from incarceration, belies
its order that his sentences be served consecutively. Petitioner asserts that this order requires that
the first sentence be completed before the second can begin.
“‘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.’ 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).
While petitioner asserts on appeal that this is an issue of first impression, this Court dealt
with similar facts in State v. Hamby, No. 11-0942, 2012 WL 3079152 (W. Va. April 16, 2012)
(memorandum decision), which the Court cited in its memorandum decision denying petitioner’s
petition for a writ of prohibition. Howell I., at *5-6. In Hamby, a defendant was sentenced to an
indeterminate term of one to ten years for a conviction of forgery and a determinate term of five
years for her conviction of the crime of taking the identify of another person, with her sentences
to run consecutively. Hamby, at *1. The circuit court ordered that Ms. Hamby’s second sentence
was suspended in lieu of three years of supervised probation. Id. Similar to this case, the defendant
was released from incarceration, placed on parole, and agreed to the terms of probation following
her release. Id. Following new criminal conduct, the State filed a petition to revoke Ms. Hamby’s
probation, and she argued that the circuit court did not have jurisdiction to revoke her probation
because she was still serving parole with the sentences to run consecutively. Id. The circuit court
in that case refused the defendant’s motion to dismiss and revoked her probation. Id. Ms. Hamby
raised the same argument on appeal, and this Court upheld the circuit court’s decision, finding that
3
“nothing in the underlying sentencing order or our prior holdings requires that petitioner be fully
discharged from the sentence in order to begin serving her probation.” Id, at *2. We also considered
in Hamby that the defendant met with her probation officer and agreed to the terms of her probation
without issue. Id. Consequently, it was clear that the defendant believed that she was serving the
term of supervised probation prior to the discharge of her first sentence, which was to her benefit.
Id.Here, the facts are nearly identical to Hamby. Upon his release from incarceration,
petitioner met with his probation officer and agreed to the terms of probation. Petitioner’s counsel
received a copy of these terms, as well. So, like Hamby, it is clear that petitioner was aware he was
subject to the terms of probation while he was on parole for his first sentence, and he did not object
to this circumstance. Petitioner has identified no authority that requires he be fully discharged from
his first sentence in order to begin serving probation on his second sentence. Therefore, we find
the circuit court had jurisdiction to revoke petitioner’s probation, and it did not err in doing so.
For the foregoing reasons, we find no error in the circuit court’s March 6, 2020, order.
Affirmed.
ISSUED: April 14, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice Alan D. Moats sitting by temporary assignment
4