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
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
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.
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.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."
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
Defense Counsel: I think he needs to be placed on probation
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.
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
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