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State ex rel. Howell v. Wilmoth

Supreme Court of Appeals of West Virginia

November 5, 2019

STATE OF WEST VIRGINIA ex rel. JAMES WILLIAM HOWELL, JR., Petitioner,
v.
THE HONORABLE DAVID H. WILMOTH, JUDGE OF THE CIRCUIT COURT OF RANDOLPH COUNTY, and MICHAEL W. PARKER, RANDOLPH COUNTY PROSECUTING ATTORNEY, Respondents

          Randolph County Nos. 16-F-104, 16-F-125

          MEMORANDUM DECISION

         Petitioner James William Howell, Jr., by counsel Phillip S. Isner and David C. Fuellhart, petitions this Court to invoke its original jurisdiction pursuant to Rule 16 of the West Virginia Rules of Appellate Procedure. Petitioner seeks a writ of prohibition, or alternatively, a writ of mandamus against respondents, the Honorable David H. Wilmoth, Judge of the Circuit Court of Randolph County, and Michael W. Parker, Randolph County Prosecuting Attorney ("the State")[1], challenging the circuit court's denial of petitioner's motion to dismiss the probation violation proceeding brought against him.

         Upon thorough consideration of the petition for writ of prohibition, the State's response, the brief of the Intervenor, the West Virginia Division of Corrections and Rehabilitation ("DCR"), [2] the parties' oral arguments, and the appendix record, we conclude that the circuit court neither lacked jurisdiction nor exceeded its jurisdiction in entering the order at issue and, therefore, extraordinary relief should not issue as the rule to show cause in this matter was improvidently granted. Because we discern no substantial question of law in connection with the petition, a memorandum decision denying the requested writ is the appropriate disposition pursuant to Rule 21 of the West Virginia Rules of Appellate Procedure.

         I. Facts

         On August 27, 2015, petitioner sold methamphetamine to a confidential informant and was later convicted of delivery of a controlled substance.[3] Thereafter, on March 30, 2016, petitioner was involved in stealing personal property from others, which was valued at $5, 100, and was later convicted of conspiracy.[4] On March 20, 2017, petitioner was sentenced in both aforementioned cases as follows:

The court ORDERED that the Defendant shall be and is hereby sentenced to not less than one (1) nor more than five (5) years on the offense of Delivery of a Controlled Substance . . . . The Court ORDERED that the Defendant shall be and is hereby sentenced to not less than one (1) nor more than (5) years in the state penitentiary for the offense of Conspiracy . . . . The Court ORDERED that said sentences shall run consecutively to each other. The Court further ORDERED that the execution of the second sentence shall be and is hereby suspended and the Defendant shall be placed on five (5) years of supervised probation with the Randolph County Probation Office upon release from the first sentence. . . .

(Emphasis added).

         Subsequently, on March 9, 2018, petitioner was released from incarceration in the state penitentiary on his first sentence and placed on parole. Petitioner was granted approval to serve his parole in the State of Maryland. Upon his release from his first sentence, petitioner reported to the Randolph County Probation Office and met with his probation officer. At that time, petitioner was advised of the terms and conditions of his supervised probation imposed on his second sentence, all as set forth in a document entitled "Probation Supervision Terms and Regulations" in which petitioner initialed each of the terms and conditions of his supervised probation and signed each page. Petitioner's counsel was provided a copy of the document. The document also indicates that petitioner's term of supervised probation would expire on April 9, 2023. As with petitioner's parole, supervision of petitioner's probation was also transferred to Maryland following this initial meeting.

         As set forth in a probation violation report dated September 12, 2018, on June 8, 2018, petitioner's probation officer received an anonymous tip that petitioner was "actively harassing" them, was "observed hanging out with known drug dealers" and "was not permitted in town." The probation officer contacted the State of Maryland and was told that petitioner had been granted permission to return to Randolph County to visit his grandmother, who was terminally ill, and should have returned to Maryland prior to June 8. Then, on June 15, 2018, petitioner's probation officer was contacted by local law enforcement and informed that petitioner "was involved in an incident that is under investigation wherein . . . [petitioner] was at his father's home recklessly discharging a firearm." Local law enforcement reported that petitioner fled from sheriff's deputies when they responded to the scene and verbally told petitioner to stop. Again on July 20, 2018, petitioner was involved in a high speed pursuit in Randolph County. Petitioner abandoned the car and fled on foot. After this incident, the sheriff's deputies obtained a warrant for petitioner for fleeing an officer with reckless indifference. On September 7, 2018, petitioner was taken into custody after actively eluding authorities for almost three months. Petitioner told his probation officer that he had been abusing methamphetamine and other drugs while he was avoiding probation supervision.

         A preliminary hearing on the alleged supervised probation violations was scheduled for October 15, 2018. At this hearing, petitioner, for the first time, objected to the fact that he was on probation and orally moved to dismiss the probation violation proceeding, arguing that he had not been released from his first sentence and, therefore, his sentence of probation for conspiracy on his second sentence had not yet started. Petitioner then waived his preliminary hearing and the circuit court granted him time to file a motion and fully brief the issue raised. The circuit court set the adjudication hearing for November 26, 2018.

         Petitioner filed a "Motion to Dismiss Probation Violation Proceedings" before the November hearing. In his motion, which cited no legal authority, petitioner's counsel argued that his probationary term had not yet begun, because at the time the State sought to revoke his probation, he was still on parole and therefore had not been "released from his first sentence[.]"

         At the November 26, 2018, adjudication hearing on petitioner's alleged violations of the terms of his supervised probation, petitioner's counsel argued that petitioner simply could not violate his probation because it had not started. He further maintained that the circuit court was without jurisdiction because his client was not on probation. He asked that the proceeding be dismissed and "the parole board can deal with it in whatever way they see appropriate[.]"[5] The circuit court, by order entered December 12, 2018, denied petitioner's motion to dismiss the probation violation proceeding, finding that "it was the Court's intention to place the Defendant on probation upon his release from incarceration[]" from petitioner's first sentence.[6]

         Petitioner filed the instant petition for writ of prohibition seeking to prohibit the circuit court from continuing with the probation violation proceeding because the petitioner had not yet begun his probationary period, or, in the alternative, requiring the circuit court to modify the sentencing order to show that petitioner is actually serving concurrent sentences.

         II. ...


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