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Zachary G. v. State

Supreme Court of West Virginia

June 9, 2017

Zachary G., Defendant Below, Petitioner
v.
State of West Virginia, Plaintiff Below, Respondent

         Berkeley County 12-F-172

          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 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 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.

         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 ...


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