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State v. Heaton

Supreme Court of Appeals of West Virginia

January 13, 2020

State of West Virginia, Plaintiff Below, Respondent
Nicholas Heaton, Defendant Below, Petitioner

          Mercer County 17-F-7


         Petitioner Nicholas Heaton, by counsel Steven K. Mancini, appeals the Circuit Court of Mercer County's September 6, 2018, order revoking his probation. Respondent State of West Virginia, by counsel Elizabeth Grant, filed a summary response in support of the circuit court's order and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in finding that there was sufficient evidence to support the revocation of his probation.

         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.

         In June of 2016, petitioner was charged, in a twenty-six count indictment, with burglary, grand larceny, attempt to commit a felony, and entering without breaking into an automobile.[1]Pursuant to a plea agreement on March 20, 2018, petitioner pled guilty to three counts of burglary, one count of grand larceny, two counts of attempt to commit a felony, and two counts of entering without breaking into an automobile. Thereafter, he was sentenced to one to ten years in prison for each of the burglary and grand larceny charges; one to three years on the attempt to commit a felony charges; and a determinate term of two months for the misdemeanor charges of entering without breaking into an automobile. The circuit court ordered the sentences for the felony convictions to run concurrently and determined that petitioner's two-month sentences for the two misdemeanors had been satisfied. Ultimately, the court suspended petitioner's sentence for the felony convictions and placed petitioner on a two-year term of probation.

         As a condition of his probation, petitioner was required to abide by a number of rules and regulations, including that he would not associate with persons who "are consuming alcohol" or "persons who use, [sell], or are involved in controlled substances." Petitioner was further required to "report to [his] probation officer monthly, or any other time [his] probation officer" told him to report and was directed to "not attempt to abscond, avoid, or evade probation supervision."

         The parties do not dispute that, on July 25, 2018, petitioner was at his residence when his friend, Cody Dailey, entered the residence with "a case of beer." Petitioner acknowledges that he admitted Mr. Dailey into his residence despite knowing Mr. Dailey was in possession of and consuming alcohol. While petitioner contends that he permitted Mr. Dailey to enter his residence simply so he could wait for a ride, petitioner admits that, while Mr. Dailey was at his residence, Mr. Dailey went into the bathroom and consumed a controlled substance that caused him to overdose.[2]

         The day following the overdose incident at petitioner's residence, petitioner's probation officer made multiple attempts to contact him - calling him, going to petitioner's home, calling petitioner's fiancé, and calling petitioner's employer (who advised that petitioner had "called in sick"). The probation officer continued to attempt to locate petitioner in the subsequent days and was ultimately advised by petitioner's grandmother that petitioner was out of town on a camping trip and unreachable.

         Upon returning home, on July 30, 2018, petitioner self-reported to his probation officer. Petitioner advised the probation officer that he had been on a camping trip at a remote location with his fiancé and several friends.[3] Petitioner admitted to calling his employer while on his camping trip and reporting that he would be missing work due to illness; he also claims that, after telephoning his employer, that he dropped and broke his phone, rendering it unusable. Petitioner's fiancé stated that her cell phone battery went dead while the couple was camping and she did not receive any messages from the probation officer until Monday, July 30, 2018. Petitioner claims that he did not know his probation officer was trying to reach him until he returned home on July 30, 2018, at which time he immediately reported to the probation office.

         On July 31, 2018, respondent filed a petition to revoke petitioner's probation, alleging that petitioner admittedly associated with persons who were consuming alcohol, that he did not report to the probation officer when the officer tried to reach him by telephone and home visit, and that petitioner attempted to abscond. A hearing was held on the revocation petition on September 4, 2018, at which the probation officer, petitioner, his fiancé, petitioner's mother, and grandmother testified. Two days later, the circuit court issued its order revoking petitioner's probation. On September 24, 2018, petitioner filed a "motion for reconsideration" of the revocation of his probation, arguing that the circuit court did not include specific written findings of fact in its revocation order.

         By amended order, entered October 1, 2018, the circuit court confirmed its revocation of petitioner's probation and set forth detailed findings. Specifically, the court found that petitioner clearly violated the terms and conditions of his probation by associating with persons consuming alcohol and using controlled substances; by failing to notify his probation officer of the overdose incident at petitioner's residence or his camping trip; and by failing to timely respond to the probation officer's multiple telephone calls and visits. Due to these violations of the terms and conditions of his probation, the court reasoned that, pursuant to West Virginia Code § 62-12-10, revocation of petitioner's probation was warranted. It is from the circuit court's October 1, 2018, amended order that petitioner now appeals.

         We have held that

[w]hen 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 738 (1997).

         West Virginia Code § 62-12-10(a)(1) and (2) addresses the ...

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