Zachary G. v. State of West Virginia

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Zachary G.,
Defendant Below, Petitioner FILED
June 9, 2017
vs) No. 15-1143 (Berkeley County 12-F-172) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
MEMORANDUM DECISION
Petitioner Zachary G.1, by counsel Paul G. Taylor, appeals his conviction for the offense
third degree sexual assault. Respondent State of West Virginia, by counsel Cheryl K. Saville,
filed a response. Petitioner filed a reply. With leave of this Court, petitioner filed a supplemental
brief. Respondent filed a supplemental response; to which petitioner filed a supplemental reply
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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Petitioner was indicted by the Berkeley County Grand jury for one count of third degree
sexual assault of H.S. (“the victim”), a thirteen year old girl at the time of the offense, and one
count of second degree sexual assault of the victim in May of 2012.
Prior to trial, petitioner moved the circuit court to order a psychological evaluation of the
victim. In discovery, the State provided information to petitioner regarding an incident that
occurred with the victim, in Tazewell Virginia. The victim’s mother disapproved of one of her
friends, and rather than tell her mother that she was with that friend, the victim told her mother
that she had been kidnapped. As a result, petitioner was charged with filing a false police report.
That charge was dismissed. Petitioner’s counsel sought to have the victim evaluated in an
attempt to determine if the victim had “a propensity and proclivity for lying,” and to determine if
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials where
necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 254, 773
S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
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her injury in this matter was self-inflicted. The State argued that this was improper, and that
credibility determinations are to be made by a jury. The circuit court agreed with the State,
denied petitioner’s motion, and found that the evidence was not probative on the issue of whether
petitioner caused the injury on August 18, 2010.
The evidence at trial revealed that on August 18, 2010, petitioner was eighteen years of
age and in a relationship with a seventeen-year-old girl, K.W. The victim was a thirteen year old
girl. According to petitioner’s statement, he was in the process of breaking up with K.W., and
K.W. contacted him asking him to purchase cigarettes for the victim. Petitioner refused. Later,
petitioner met the victim and K.W. at K.W.’s house, and K.W. told petitioner that the victim
wanted to apologize. Ultimately, according to the victim, petitioner had sexual intercourse with
her and K.W. After petitioner penetrated her, the victim was in pain and bleeding, and left the
room while petitioner was having sex with K.W., and called her mother. The victim’s mother
then contacted the police who interviewed petitioner.
Petitioner gave two statements to Sergeant Snyder of the Berkeley County Sheriff’s
Department. On August 18, 2010, petitioner recounted the events to police, but denied having
sex with the victim. Petitioner admitted to the police that he intended to have sex with K.W. and
that the victim was in the room, with her shirt off, and watched. The next day, August 19, 2010,
petitioner gave another statement to police, and Sgt. Snyder confronted him with evidence from
the hospital that the victim suffered tears in her vagina and hymen, and that medical
professionals recovered hair and DNA from the victim’s body and clothing. Petitioner continued
to deny that he had sexual intercourse with the victim, and requested an attorney.
Following a jury trial in July of 2013, Petitioner was convicted in the Circuit Court of
Berkeley County, of the offense of third degree sexual assault. The matter was continued several
times and at a sentencing hearing on February 24, 2014, the circuit court chose to defer
sentencing and placed petitioner at the Anthony Correctional Center for Youthful Offenders
(“Anthony Center”). Petitioner completed the program at the Anthony Center, and the circuit
court sentenced him to a term of one to five years in the penitentiary. The circuit court suspended
the sentence and placed petitioner on probation for a period of five years. Petitioner was also
ordered to serve five years of supervised release pursuant to West Virginia Code § 62-12-26. As
a condition of his sentence, petitioner was required to register as a sexual offender for life.
Following his release on probation, petitioner moved into a rescue mission shelter,
however, once he registered as a sex offender, he was no longer allowed to stay in the mission
due to the mission’s resident guidelines. Petitioner was unable to secure a suitable residence.
Because he was unable to find a suitable residence, petitioner was incarcerated at the Eastern
Regional Jail until such time as he could arrange for a verifiable residence in conformity with the
terms of his probation.
The parties agreed, and by orders entered on August 12, 2015, and September 4, 2015,
petitioner was released from the jail during the day in order to seek employment opportunities,
pursue educational opportunities, participate in community based programming and services,
attend mental health treatment, and other activities approved by the circuit court. On August 18,
2015, petitioner’s intensive supervision probation officer instructed petitioner to call him every
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day of his release so that they could discuss his plans for the day. The probation officer also
asked petitioner to keep a record of his employment efforts. After petitioner was released for
several days, the probation officer discovered that petitioner was not making contact with him,
and that petitioner had no record regarding his employment efforts. Further, petitioner reported
to his probation officer that during the day he was at a “friend’s house.” A petition to revoke
petitioner’s probation was filed, and a capias was issued for petitioner’s arrest.
Petitioner’s probation revocation hearing was held on December 4, 2015. At the hearing,
the circuit court heard evidence regarding petitioner’s non-compliance with the terms of his
probation. Petitioner moved for the court to allow him to live in the home of a friend. This
motion was denied because the friend had small children in the home, which would be in
violation of the terms of petitioner’s supervised release.
On December 22, 2015, the circuit court revoked petitioner’s probation, and sentenced
him to a term of incarceration of not less than one nor more than five years in the penitentiary. In
addition, petitioner was required to serve an additional term of five years supervised release
following his incarceration pursuant to West Virginia Code § 62-12-26. The circuit court found
that petitioner was not amenable to probationary control and discipline, and had not found a
verifiable residence within Berkeley County. Petitioner filed a notice of appeal before this Court
in November of 2015, and perfected that appeal in July of 2016.
Petitioner’s term of incarceration expired on June 23, 2016, and he was placed on
supervised release. Petitioner was again unable to find a residence, and the probation officer
placed him at Crossroads, a shelter facility in Charleston, West Virginia. Reportedly, petitioner
was belligerent and refused placement at the shelter, and reportedly stated that “he could just be
taken back to jail.” On July 20, 2016, petitioner’s probation officer filed a petition for revocation
of supervised release, alleging that petitioner did not have a verifiable residence, and that he
refused the shelter option. The circuit court revoked petitioner’s supervised release again, on
August 19, 2016, and sentenced petitioner to serve a determinate term of five years of
incarceration in the penitentiary.
Petitioner filed a motion to stay, which was denied by the circuit court. Petitioner argued
that the circuit court did not have the authority to issue the revocation as this matter was still
pending before the West Virginia Supreme Court. On November 7, 2016, the circuit court
entered an order that stayed the imposition of sentence for petitioner’s supervised release
violation, and suspended petitioner’s sentence of five years of incarceration. The circuit court
then granted petitioner post-conviction bail under the terms of a work-release program.2
Petitioner now appeals the December 23, 2015, and the August 19, 2016, orders of the Circuit
Court of Berkeley County.
2
In August of 2016, petitioner filed a motion to modify and amend the scheduling order,
and this Court issued an amended scheduling order, to allow petitioner to brief issues related to
his supervised release and incarceration.
3
On appeal petitioner alleges that the circuit court erred by (1) denying petitioner’s motion
for a psychological evaluation of the victim; and (2) revoking petitioner’s probation and
imposing sentence.3 In his supplemental brief petitioner alleges that the circuit court (1) did not
have jurisdiction to revoke his supervised release and (2) the circuit court erred in revoking his
supervised release and imposing sentence due to petitioner’s “willful homelessness.” As an
initial matter we note,
3
Petitioner also complains as assignments of error, (1) that the circuit court erred in
denying his motion to dismiss based upon the presentation of false evidence to the grand jury and
cites testimony from a grand jury proceeding which petitioner asserts took place on July 22,
2013, and (2) that the circuit court erred in denying his proposed jury instructions regarding
missing evidence. However, there was no July 22, 2013, grand jury proceeding reflected in the
record. In fact, the July 22, 2013, pre-trial hearing took place more than one year after
petitioner’s indictment by the grand jury in May of 2012. The record before this Court does not
contain the relevant portion of the grand jury testimony, nor does petitioner’s brief properly cite
to this testimony in the record. In addition, petitioner’s argument regarding the proposed jury
instruction simply refers this Court to the relevant portion of the trial transcript, and instructs this
Court to review that transcript in order to ascertain petitioner’s argument. Pursuant to Rule
10(c)(7) of the West Virginia Rules of Appellate Procedure,
[t]he brief must contain an argument exhibiting clearly the points of fact and law
presented, the standard of review applicable, and citing the authorities relied on,
under headings that correspond with the assignments of error. The argument must
contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal. The Court may disregard errors that are not
adequately supported by specific references to the record on appeal.
Once again, we emphasize that, ““[a] skeletal ‘argument’, really nothing more than an
assertion, does not preserve a claim.... Judges are not like pigs, hunting for truffles buried in
briefs.” State, Dep’t of Health & Human Res., Child Advocate Office on Behalf of Robert
Michael B. v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995).
Consequently, we decline to consider these assignments.
As an additional assignment of error, petitioner inexplicably argues that his statement to
law enforcement was hearsay, and inadmissible. We find petitioner’s argument is without merit.
Pursuant to Rule 801(d)(2)(A) of the West Virginia Rules of Evidence, in relevant part, a
statement is not hearsay if “[t]he statement is offered against an opposing party and . . . was
made by the party in an individual or representative capacity.” Here, petitioner is not contesting
that he made the statement, or that the statement was voluntary, and the State sought to introduce
the statement into evidence against him. Accordingly, petitioner’s statement is not hearsay.
Consequently the circuit court did not err in allowing its admission.
4
[i]n reviewing challenges to findings and rulings made by a circuit court,
we apply a two-pronged deferential standard of review. We review the rulings of
the circuit court concerning a new trial and its conclusion as to the existence of
reversible error under an abuse of discretion standard, and we review the circuit
court’s underlying factual findings under a clearly erroneous standard. Questions
of law are subject to a de novo review.
Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).
Petitioner first argues that the circuit court erred in denying his motion for a
psychological evaluation of the victim. Petitioner argues that pursuant to syllabus point three of
State v. Delaney, 187 W. Va. 212, 417 S.E.2d 903 (1992), there were compelling facts that
warranted this evaluation, specifically, the testimony of a nurse who indicated that the victim’s
injuries could have been self-inflicted. The State counters that the actual purpose of this motion
was to have a psychologist impermissibly evaluate the victim’s credibility.
While a defendant has a right to present evidence on his own behalf and to confront
adverse witnesses, pretrial discovery is generally within the discretion of the trial court. See Syl.
Pt. 8, State v. Audia, 171 W. Va. 568, 301 S.E.2d 199 (1983). Further, “the decision whether to
require a psychiatric evaluation prior to determining a child’s capacity to testify is within the trial
court’s discretion.” Delaney, 187 W. Va. at 215, 417 S.E.2d at 906. In Delaney, we held that
[i]n order for a trial court to determine whether to grant a party’s request for
additional physical or psychological examinations, the requesting party must
present the judge with evidence that he has a compelling need or reason for the
additional examinations. In making the determination, the judge should consider:
(1) the nature of the examination requested and the intrusiveness inherent in that
examination; (2) the victim’s age; (3) the resulting physical and/or emotional
effects of the examination on the victim; (4) the probative value of the
examination to the issue before the court; (5) the remoteness in time of the
examination to the alleged criminal act; and (6) the evidence already available for
the defendant’s use.
Syl. Pt. 3, id.
It is clear from the record that the circuit court carefully considered these factors in
making the determination to deny petitioner’s motion. The circuit court noted that at the time the
motion was filed, the victim was sixteen years old, and that while a psychological examination is
not as intrusive as a physical examination, there was the potential for some emotional harm to
the victim. Importantly, the circuit court found that the psychological examination would have
little probative value, as the victim did not have a history of prior self-harm. The circuit court
further found that the value of any evaluation would be diminished as three years had passed
since the commission of the offense and the motion for evaluation. Finally, the circuit court
found that petitioner had evidence in the form of the police report of the incident in Virginia, and
was free to cross-examine the victim on the issue. Based upon the above, we find no abuse of
discretion, and decline to reverse the circuit court’s ruling.
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Next, petitioner claims that the circuit court erred in revoking his probation and imposing
sentence.4 Petitioner argues that the circuit court improperly revoked his probation and
supervised release due to his status as a homeless person. Petitioner asserts that the evidence
presented at his revocation hearings revealed that he was indigent, homeless, and without the
ability to be gainfully employed due to his homelessness. Petitioner argues that before one may
have his probation or parole terminated or revoked, it must be demonstrated that the violation is
not due to the lack of financial resources of the defendant. See State v. Haught, 179 W. Va. 557,
371 S.E.2d 54 (1988); State v. Minor, 176 W. Va. 92, 341 S.E.2d 838 (1986); and Armistead v.
Dale, 170 W. Va. 319, 294 S.E.2d 122 (1982). Petitioner also argues that the circuit court lacked
the jurisdiction to impose a five year incarceration sentence once his first appeal was filed with
this Court.
We find petitioner’s argument unpersuasive. We have previously held that “probation is a
privilege of conditional liberty bestowed upon a criminal defendant through the grace of the
circuit court. . . . Accordingly, the decision as to whether the imposition of probation is
appropriate in a certain case is entirely within the circuit court’s discretion.” State v. Duke, 200
W. Va. 356, 364, 489 S.E.2d 738, 746 (1997). The record reflects that petitioner was sentenced
to the Anthony Center pursuant to the Youthful Offenders Act, and upon release, was unable to
live at the local homeless shelter because of his status as a registered sex offender. In an attempt
to accommodate petitioner’s homelessness, the circuit court granted petitioner work-release from
the regional jail in order to allow petitioner the ability to secure employment, participate in
community services, attend educational pursuits, and obtain mental health treatment. Rather than
comply with these terms, petitioner refused to call his probation officer daily, as required, and
could provide no records to show that he sought employment, leaving large gaps of his time
unaccounted for, which were clear violations of the terms and conditions of probation. Pursuant
to West Virginia Code § 62-12-10, in relevant part,
“[i]f the court or judge finds reasonable cause exists to believe that the
probationer: . . . [v]iolated 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.”
Accordingly, we find that under these circumstances, the circuit court did not abuse its discretion
in revoking petitioner’s probation.
4
Petitioner also argues that under West Virginia Code § 62-12-10(a)(2), the maximum
sentence he should have received for his probation revocation was sixty days. However, the
circuit court found that petitioner violated three conditions of probation, and pursuant to said
section, “[f]or 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.” Id., in relevant part.
There is no requirement that three separate petitions be filed against a defendant. Accordingly,
we find this argument lacks merit.
6
In petitioner’s supplemental brief, he argues that the circuit court did not have jurisdiction
to revoke his supervised release and sentence him to serve five years of that supervision in the
penitentiary while his original appeal was pending before this Court. For support, petitioner cites
syllabus point three of Fenton v. Miller, 182 W. Va. 731, 391 S.E.2d 744 (1990), in which this
Court held that “[o]nce this Court takes jurisdiction of a matter pending before a circuit court, the
circuit court is without jurisdiction to enter further orders in the matter except by specific leave
of this Court.”
Although in syllabus point one, in part, of State v. Doom, 237 W. Va. 754, 791 S.E.2d
384 (2016), this Court held that “[w]hen the Supreme Court of Appeals of West Virginia grants a
petition for appeal all proceedings in the circuit court relating to the case in which the petition for
appeal has been granted are stayed pending this Court’s decision in the case[,]” we find
petitioner’s argument to be without merit. The circuit court sentenced petitioner under West
Virginia Code § 62-12-26, which allows for extended supervision of certain sex offenders. Under
the very narrow circumstances of this case, it is untenable that the circuit court would not retain
jurisdiction to revoke the supervised release of a registered sex offender, who was unable and
unwilling to provide a suitable address as required for his supervision.
Had the circuit court not acted, petitioner likely would have been released without a
suitable address, in violation of the terms and conditions of his supervised release. Consequently,
the circuit court retained its authority to hear matters of executing and effectuating revocations of
probation or supervised release. The United States Supreme Court has drawn a distinction
between the imposition of sentence, which creates a final judgment for appeal in a criminal case,
and the execution of that sentence, which is “entirely apart from any re-examination of the merits
of the litigation.” Berman v. U.S., 302 U.S. 211, 213 (1937). Unlike the motion to reduce
sentence that was granted in Doom, the State’s motion to revoke petitioner’s supervised release
was not a re-examination of the merits of the litigation.
At the time of the hearing on petitioner’s motion for supervised release, petitioner was
convicted of the offense of third offense sexual assault, and was sentenced to a term of
incarceration, with an additional term of supervised release pursuant to West Virginia Code § 62­
12-26. The motion to revoke supervised release did not re-submit the question of the suitability
of petitioner for probation, the motion pertained to the execution of the original sentence.
Further, with respect to the due process rights of petitioner, we have recognized that “the
revocation of parole (probation) is not part of a criminal prosecution and thus the full panoply of
rights due a defendant in such a proceeding does not apply to parole (probation) revocation.”
Sygman v. Whyte, 165 W. Va. 356, 359, 268 S.E.2d 603, 605 (1980) (citation omitted).
Therefore, we find under the very limited circumstances of this case, that the circuit court
retained jurisdiction for the purposes of executing the original sentence.
Petitioner finally complains that the circuit court erred in revoking his supervised release
because of his homeless status. Petitioner argues that pursuant to State v. Hargus, 232 W. Va.
735, 753 S.E.2d 893 (2013), a five year sentence imposed by the circuit court for a “purely
technical” violation violates article 3, section 10 of the West Virginia Constitution and the
Fourteenth Amendment of the United States Constitution. Petitioner asserts that his sentence is
so disproportionate to the crime in this matter that it shocks the conscience.
7
We disagree. In Hargus, we found that a five year term of imprisonment imposed on a
defendant was not unconstitutionally disproportionate and held that, “West Virginia Code § 62–
12–26(g)(3) (2011) does not facially violate procedural due process principles of the Fourteenth
Amendment to the Constitution of the United States or Article III, § 10 of the Constitution of
West Virginia.” Syl. Pt. 5, Hargus. In addition, there are two tests to determine whether a
sentence is so disproportionate to a crime that it violates the West Virginia Constitution. The
subjective test is found in syllabus point five of State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851
(1983), which provides:
Punishment may be constitutionally impermissible, although not cruel or
unusual in its method, if it is so disproportionate to the crime for which it is
inflicted that it shocks the conscience and offends fundamental notions of human
dignity, thereby violating West Virginia Constitution, Article III, Section 5 that
prohibits a penalty that is not proportionate to the character and degree of an
offense.
When it cannot be found that a sentence shocks the conscience, a disproportionality challenge is
guided by the objective test which provides:
In determining whether a given sentence violates the proportionality
principle found in Article III, Section 5 of the West Virginia Constitution,
consideration is given to the nature of the offense, the legislative purpose behind
the punishment, a comparison of the punishment with what would be inflicted in
other jurisdictions, and a comparison with other offenses within the same
jurisdiction.
Syl. Pt. 5, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).
This Court finds that the circuit court’s order does not violate the constitutional
proportionality principle. Petitioner was convicted and sentenced under the extended supervision
statute for the offense of sexual assault in the third degree, perpetrated upon a minor. Further, it
is clear from the record that petitioner refused suitable placement, and could not provide a
verifiable residence which is a requirement in order to ensure the safety and security of the
community. For these reasons, this Court finds that the post-revocation sanctions levied against
petitioner do not shock the conscience or offend fundamental notions of human dignity.
This Court also finds that petitioner’s post-revocation sanctions do not violate the
objective test for constitutional disproportionality. Petitioner has failed to specifically address
how the nature of the offense, the legislative purpose behind the punishment, and a comparison
of other offenses within the same jurisdiction compel the finding that his post-revocation
sanctions violate our constitution’s proportionality principle.
For the foregoing reasons, we affirm.
Affirmed.
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ISSUED: June 9, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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