Zachary Wamsley, by counsel Eric K. Powell, appeals the
Circuit Court of Wood County's January 31, 2017, order
revoking his probation. Respondent State of West Virginia, by
counsel Gordon L. Mowen II, filed a response. On appeal,
petitioner argues that the circuit court erred in failing to
grant his motion for youthful offender treatment.
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.
April 5, 2016, petitioner pled guilty to one count of grand
larceny. On June 14, 2016, the circuit court sentenced
petitioner to not less than one year nor more than ten years
of incarceration. The circuit court suspended
petitioner's sentence, however, and placed him on three
years of probation.
December 14, 2016, petitioner's probation officer filed a
petition to revoke petitioner's probation.
Petitioner's probation officer alleged that petitioner
used morphine without a valid prescription, admitted to
smoking K-2, was convicted of the offense of driving
with a suspended or revoked license, failed to appear for a
random drug screen, and committed the offense of delivery of
a controlled substance. All of the violations were alleged to
have occurred within the first four months following
petitioner's placement on probation. It is undisputed
that all of the alleged transgressions were in violation of
the terms and conditions of petitioner's probation.
circuit court held a hearing on the petition to revoke
probation. Petitioner admitted to all of the violations
alleged in the petition, except for the delivery of a
controlled substance.Petitioner also requested either
imprisonment or youthful offender treatment. By order entered
on January 31, 2017, the circuit court revoked
petitioner's probation, denied his request for
alternative sentencing, and imposed his original sentence of
not less than one year nor more than ten years of
incarceration. It is from this order that petitioner appeals.
appeal, petitioner contends that the circuit court erred in
failing to grant his motion for youthful offender treatment.
Petitioner argues that his underlying crime was nonviolent
and his first felony. Petitioner highlights that he admitted
to and accepted responsibility for his actions. Petitioner
also claims to have been in substantial compliance with the
terms of his probation and that his "relapses"
occurred within weeks of his sentencing hearing. Thus,
petitioner maintains that revoking his probation and imposing
his prison sentence "was too drastic and unnecessary of
a decision[, ]" and that youthful offender treatment
would have been a more appropriate outcome.
previously articulated our standard of review as follows:
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.
Syl. Pt. 1, State v. Duke, 200 W.Va. 356, 489 S.E.2d
that the circuit court did not abuse its discretion in
denying petitioner's motion for youthful offender
treatment. The Youthful Offenders Act, West Virginia Code
§ 25-4-6, provides that
[t]he circuit court may suspend the imposition of sentence of
any young adult, as defined in this section, convicted of or
pleading guilty to a felony offense, other than an offense
punishable by life imprisonment, including, but not limited
to, felony violations of the provisions of chapter
seventeen-c of this code, who had attained his or her
eighteenth birthday but had not reached his or her
twenty-fourth birthday at the time the offense was committed
for which the offender is being sentenced and commit the
young adult to the custody of the West Virginia Commissioner
of Corrections to be assigned to a center[.]
language of the statute vests discretionary, not mandatory,
authority in the circuit court to impose youthful offender
treatment. State v. Shaw, 208 W.Va. 426, 430, 541
S.E.2d 21, 25 (2000) ("Just as a trial court's
decision to grant or deny probation is subject to the
discretion of the sentencing tribunal, so too is the decision
whether to sentence an individual pursuant to the Youthful
Offenders Act."). Petitioner admitted to four violations
of the terms and conditions of his probation, all of which
occurred in a relatively short time after being placed on
probation. Thus, contrary to petitioner's assertion, he
was not in "substantial compliance" with the terms
and conditions of his probation, and he failed to demonstrate
amenability to treatment other than incarceration. Therefore,
the circuit court did not abuse its discretion in denying
petitioner's motion for youthful offender treatment.
foregoing reasons, we affirm the circuit court's January
31, 2017, order ...