State of West Virginia v. Michael Dwayne Cooper

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent
May 9, 2018
released at 3:00 p.m.
vs.) No. 17-0357 (Mingo County A16-F-61) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Michael Dwayne Cooper,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Michael Cooper (“Mr. Cooper), by counsel Susan J. Van Zant,
appeals the March 16, 2017, “Probation Revocation Order and Sentencing Order” of the
Circuit Court of Mingo County. Respondent, the State of West Virginia (“the State”), by
counsel Scott E. Johnson, filed a response urging this Court to affirm the circuit court’s
order.
Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds that the circuit court’s decision is based upon an erroneous
conclusion of law. This case satisfies the “limited circumstances” requirement of Rule
21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision.
On August 11, 2016, Mr. Cooper and the State entered into a plea
agreement whereby Mr. Cooper pled guilty to one count of third offense DUI in violation
of W.Va. Code § 17C-5-2(l). The State agreed to dismiss two remaining counts against
Mr. Cooper. The circuit court accepted the plea agreement and by order entered on
October 6, 2016, sentenced Mr. Cooper to an incarceration term of one to three years.
However, it suspended this sentence and granted Mr. Cooper’s request for an alternative
sentence allowing him to attend a fifteen month substance abuse treatment program.
Following a positive drug screen in December of 2016, Mr. Cooper was
dismissed from the substance abuse treatment program. Thereafter, on January 3, 2017,
the State requested that the circuit court issue a “pick up order” to detain Mr. Cooper.
The circuit court granted this order and ruled that Mr. Cooper should be “picked up and
confined at the Southwest Regional Jail.” On February 9, 2017, counsel for Mr. Cooper
filed a motion to set aside the “pick up order.” In this motion, counsel stated that Mr.
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Cooper had not been detained following entry of the circuit court’s pick up order.1
Instead, Mr. Cooper had enrolled in an inpatient substance abuse facility soon after his
release from the prior substance abuse program. According to the motion, Mr. Cooper
had “almost completed the inpatient 28 day substance abuse program . . . and has been
referred to an outpatient program . . . [which is] an intense eight week program that meets
daily.”
The circuit court held a hearing on the motion to set aside the pick up order
on February 23, 2017. During this hearing, the circuit court placed Mr. Cooper on home
confinement and allowed him to participate in the substance abuse program. Thereafter,
the circuit court and counsel for Mr. Cooper engaged in the following exchange:
Circuit Court: If he’s given a furlough to do this [substance
abuse program], will he get credit for this time or do I need to
place him on probation to give him credit for this time, and
then he can be revoked and I can give him more time?
Defense Counsel: I think he needs to be placed on probation
now.
Circuit Court: Then that’s what I’m going to do, because if
he doesn’t do this he’s not going to get credit for any of this
time. . . . All right; home confinement, probation; a condition
of probation that he goes to this rehab and has them report
every week as to his progress and attendance.
...
Circuit Court: Probation will be for a period of two years,
and have him meet with Ms. Webb before he leaves today.
Following this hearing, the circuit court entered a “Circuit Court Jail
Release” order which provided as follows: “released on Home Confinement/Probation –
2 years.” On the following day, the circuit court entered an order “revoking home
confinement.” This order provided that Mr. Cooper “was ordered to report to the home
confinement office upon his release from the regional jail. The defendant was released
Thursday, February 23, 2017, at 5:00 p.m., and as of today’s date [2/24/2017] at 2:00
p.m., the defendant has failed to report or contact the home confinement office.”
1
It is unclear why Mr. Cooper was not picked up following entry of the circuit
court’s order.
2
On March 2, 2017, the circuit court held a hearing on the order revoking
Mr. Cooper’s home confinement. At the beginning of this hearing, counsel for Mr.
Cooper and the circuit court had the following exchange:
Defense Counsel: Your honor, actually an order was – he
was granted release last week and I think you referred it to the
Southwestern Regional Jail and he did not report to home
confinement on Friday and he was picked back up and we’re
requesting that he be released again and that he be allowed to
attend [the substance abuse program], which I had requested
before. I think there was confusion – I did not personally
explain to Mr. Cooper –
Circuit Court: I did; I don’t know [sic] it could have been any
clearer.
Defense Counsel: Mr. Cooper, he didn’t even realize he was
going to be getting out of jail Thursday evening. He didn’t
know when he would get out because I told him he’d get out
when the order was signed, and I was out of town Friday. I
could not contact him. I know I got a voicemail from the
home confinement officer, but I didn’t have Mr. Cooper’s
phone number with me. I couldn’t try to reach him until
Monday, when he was already in jail. He lives with his wife
and grandmother, I believe. They’re both here. His
grandmother is his means of transportation. She was not on
notice she had to bring him to Williamson Friday morning,
and I don’t think she was available, but from all reports from
[the substance abuse program], they state that he is a
wonderful asset to their program and they really think he has
benefitted.
Circuit Court: Any other preliminary matters?
Defense Counsel: No. So I would request that he be allowed
to go there.
Circuit Court: Okay. That will be denied.
Following this exchange, Kevin Wilson, a home confinement officer,
testified that Mr. Cooper reported to the home confinement office on Monday morning,
February 27, 2017. Mr. Wilson stated that when he asked Mr. Cooper why he had not
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reported to the home confinement office on the previous Friday, Mr. Cooper stated that
he was not aware that he was required to report on that date.
The circuit court held a final revocation hearing on March 7, 2017. At this
hearing, Mr. Cooper did not contest the fact that he had violated the home confinement
order.2 Thereafter, the parties had the following discussion regarding the penalty for Mr.
Cooper’s home confinement violation:
Defense Counsel: If he is found in violation, pursuant to
West Virginia Code 62-12-10(2), the violation would be up to
a period of confinement up to sixty (60) days for the first
violation of probation.
Counsel for the State: I agree with [defense counsel]. That is
the applicable law and that is the rule, and I would ask the
court to consider that.
Circuit Court: Well, I don’t think he was placed on
probation. I’m looking at his sentencing order. . . .
Defense Counsel: Your Honor, on February 23rd you signed
an order releasing him on home confinement and two years of
probation.
Circuit Court: Let me see that. Well, that’s a commitment
order.
Defense Counsel: But it says at the bottom home
confinement, probation two years.
Circuit Court: Well, but this is a jail commitment order.
Defense Counsel: And then – Well, the order that you
entered on February 24th also references his home
confinement and his probation.
Further, during this hearing the circuit court asked the probation officer if
Mr. Cooper had signed a document setting forth his probation rules. The probation
2
While Mr. Cooper did not contest the fact that he had committed a home
confinement violation, we note that the record before us is devoid of any instance in
which Mr. Cooper was informed that he was required to report to the home confinement
office on Friday, February 24, 2017.
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officer responded that he had not. The circuit court therefore determined that Mr. Cooper
“was never actually placed on probation because he didn’t show up to probation even to
be revoked.” The circuit court concluded that W.Va. Code § 62-12-10(a)(2), concerning
probation violation penalties, was not applicable because Mr. Cooper “was never actually
placed on probation.” By order entered on March 16, 2017, the circuit court sentenced
Mr. Cooper to serve his underlying sentence, one to three years. Mr. Cooper filed the
instant appeal following entry of this order.
Our standard of review is set forth in Syllabus Point 1 of State v. Inscore,
219 W.Va. 443, 634 S.E.2d 389 (2006):
“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).
On appeal, Mr. Cooper argues that the circuit court erred by ordering him
to serve his full one to three year sentence based on his probation violation. According to
Mr. Cooper, his probation violation subjected him to a maximum sentence of sixty days
based on W.Va. Code § 62-12-10. After review, we agree with Mr. Cooper.
This case involves Mr. Cooper’s probation revocation. This Court has
previously addressed probation in a number of cases. In State v. Duke, 200 W.Va. 356,
364, 489 S.E.2d 738, 746 (1997), this Court provided:
We have recognized that probation is a privilege of
conditional liberty bestowed upon a criminal defendant
through the grace of the circuit court. See, e.g., State ex rel.
Winter v. MacQueen, 161 W.Va. 30, 32-33, 239 S.E.2d 660,
661-62 (1977) (“‘[A] defendant convicted of a crime has no
absolute right to probation, probation being a matter of grace
only, extended by the State to a defendant convicted of a
crime, in certain circumstances and on certain conditions.’”
(quoting State v. Loy, 146 W.Va. 308, 318, 119 S.E.2d 826,
832 (1961))); Syl. pt. 1, State v. Rose, 156 W.Va. 342, 192
S.E.2d 884 (1972) (“Probation is a matter of grace and not a
matter of right.”); State ex rel. Riffle v. Thorn, 153 W.Va. 76,
81, 168 S.E.2d 810, 813 (1969) (“‘Probation or suspension of
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sentence comes as an act of grace to one convicted of a
crime[.]’” (quoting Escoe v. Zerbst, 295 U.S. 490, 492, 55
S. Ct. 818, 819, 79 L. Ed. 1566, 1568 (1935))); Syl. pt. 2, State
ex rel. Strickland v. Melton, 152 W.Va. 500, 165 S.E.2d 90
(1968) (“Probation is not a sentence for a crime but instead is
an act of grace upon the part of the State to a person who has
been convicted of a crime.”).
Accordingly, the decision as to whether the imposition
of probation is appropriate in a certain case is entirely within
the circuit court’s discretion. The West Virginia Legislature
has established that “[a]ny circuit court of this State shall
have authority . . . to place on probation any person convicted
of a crime.” W.Va. Code § 62-12-1 (1975) (Repl.Vol.1992).
The instant matter requires us to examine W.Va. Code § 62-12-10(a)(2). It
provides:
(a) If 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.
...
(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 order that
sentence be executed, with credit for time spent in
confinement under this section.
(Emphasis added).
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Mr. Cooper was placed on probation on February 23, 2017. The circuit
court made this clear at the conclusion of the February 23, 2017, hearing, stating: “All
right; home confinement, probation; a condition of probation that he goes to this rehab
and has them report every week as to his progress and attendance. . . . Probation will be
for a period of two years[.]” (Emphasis added). Further, the circuit court entered an order
after this hearing confirming that Mr. Cooper was on probation, it provides that Mr.
Cooper was “released on Home Confinement/Probation – 2 years.” (Emphasis added).
Additionally, the circuit court’s February 24, 2017, order revoking Mr. Cooper’s home
confinement states, “Be it remembered that the Defendant herein, Michael DeWayne
Cooper, was previously placed on electronic Home Confinement as a condition of his
probation.” (Emphasis added).
The circuit court’s determination that Mr. Cooper was not placed on
probation is unsupported by the record in this case.3 The circuit court’s February 23,
2017, order clearly provided that Mr. Cooper was on probation for a period of two years.
Thus, Mr. Cooper’s probation began when that order was entered. “It is a paramount
principle of jurisprudence that a court speaks only through its orders.” Legg v. Felinton,
219 W.Va. 478, 483, 637 S.E.2d 576, 581 (2006). See State v. White, 188 W.Va. 534,
536 n. 2, 425 S.E.2d 210, 212 n. 2 (1992) (“[H]aving held that a court speaks through its
orders, we are left to decide this case within the parameters of the circuit court’s order.”
(citations omitted)); State ex rel. Erlewine v. Thompson, 156 W.Va. 714, 718, 207 S.E.2d
105, 107 (1973) (“A court of record speaks only through its orders[.]” (citations
omitted)).
Because both the hearing transcript and the circuit court’s order clearly
provide that Mr. Cooper was placed on probation, we find that the penalty for his
probation violation is set forth in W.Va. Code 62-12-10(a)(2). As this Court has
previously noted, “West Virginia Code § 62-12-10(a)(2) authorizes a term of
incarceration of up to sixty days for a first probation violation.” State v. Eisenbeiss, 2017
WL 656996 (February 17, 2017) (memorandum decision). Thus, we conclude the circuit
court erred by sentencing Mr. Cooper to serve one to three years based on his first
probation violation. Instead, Mr. Cooper should have received a maximum incarceration
term of sixty days for his probation violation pursuant to the clear language contained in
W.Va. Code § 62-12-10(a)(2).
3
Likewise, we find no support for the State’s argument on appeal that “until the
defendant accepts the probation, there is no probation.” The circuit court entered an order
placing Mr. Cooper on probation. The State has not cited any West Virginia law
supporting its position that, despite the court’s order placing Mr. Cooper on probation,
the term of probation did not begin until “the defendant accepts the probation.”
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For the foregoing reasons, we reverse the circuit court’s March 16, 2017,
order, and remand this matter to the circuit court for entry of an order releasing Mr.
Cooper from incarceration and placing him on probation because Mr. Cooper has already
served far more than the sixty day sentence he should have received for his probation
violation. In fact, Mr. Cooper has been incarcerated for over a year for his probation
violation. Further, the Clerk is directed to issue the mandate in this action forthwith.
Reversed and Remanded With Directions.
ISSUED: May 9, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
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