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State v. Cooper

Supreme Court of West Virginia

May 9, 2018

State of West Virginia, Plaintiff Below, Respondent
Michael Dwayne Cooper, Defendant Below, Petitioner

          Mingo County A16-F-61


         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(1). 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. 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."

         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 ...

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