Mangus v. McCarty, 21310

• Citation: 425 S.E.2d 239,188 W.Va. 563
• Decision Date: 18 December 1992
• Docket Number: No. 21310,21310
• Court: Supreme Court of West Virginia
• Parties: Curtis MANGUS, Defendant Below, Petitioner, v. Honorable Charles E. McCARTY, Judge of the Circuit Court of Calhoun County, and Patricia L. McCARTNEY, Probation Officer for Calhoun County, Respondents.

Page 239

425 S.E.2d 239

188 W.Va. 563

Curtis MANGUS, Defendant Below, Petitioner, v. Honorable Charles E. McCARTY, Judge of the Circuit Court of Calhoun County and Patricia L. McCARTNEY, Probation Officer for Calhoun County Respondents.

No. 21310.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 6, 1992.

Decided Dec. 18, 1992.

Syllabus by the Court

1. "A circuit court has jurisdiction to revoke probation subsequent to the expiration of the probationary period where a warrant for the probationer's arrest for probation violation is issued prior to the expiration of the probationary period; where the probationer flees the jurisdiction and is apprehended only a short time prior to the expiration of his probationary period; and where the delay in hearing the probation revocation until after the expiration of the probationary period is occasioned by the actions of the petitioner and or his counsel." Syl. Pt. 2, State ex rel. Ostrander v. Wilt, 164 W.Va. 184, 262 S.E.2d 420 (1980).

2. In order to sustain and extend the jurisdictional authority to revoke probation subsequent to the expiration of the probationary period, the probationer must at least be charged with the probation violation prior to such expiration. Where no such charges are brought prior to the expiration of the probationary term, jurisdiction does not continue beyond the date of such expiration.

Duane C. Rosenlieb, Jr., St. Albans, for petitioner.

WORKMAN, Justice:

Curtis Mangus petitions this Court for a writ of prohibition preventing The Honorable Charles E. McCarty, Judge of the Fifth Judicial Circuit, Calhoun County West Virginia, from proceeding against him for violations of his probation. Mr. Mangus contends that the lower court lacks authority to impose any penalty for violations which may have occurred and further asserts that he should be released from further jurisdiction of the court, having served his probationary term. Under these circumstances, we agree with Mr. Mangus and hereby grant the requested writ of prohibition.

I.

On June 12, 1989, Mr. Mangus was sentenced by the lower court to a one-to-five year indeterminate sentence for manufacturing a controlled substance. The sentence was suspended, and Mr. Mangus was placed on three years probation beginning June 12, 1989, and continuing through June 12, 1992. On July 28, 1989, Mr. Mangus' former probation officer, William M. Slaven, issued an out-of-state travel permit authorizing Mr. Mangus to travel to Cummings, Georgia, for employment purposes. Mr. Mangus contends that he has remained gainfully employed since arriving in Georgia and is presently employed as an equipment operator by C.W. Matthews Contracting Company in Cummings, Georgia. The out-of-state travel permit which had been issued on July 28, 1989, required Mr. Mangus to return to West Virginia by November 28, 1989. Mr. Mangus contends that he did return to West Virginia but was unable to contact anyone from the probation office due to the Thanksgiving holidays.

On November 29, 1989, Respondent Patricia McCartney informed Mr. Mangus by letter that she had become his new probation officer. After that information was mailed to Mr. Mangus, apparently no further attempts to contact Mr. Mangus were made until approximately November 21, 1990. At that time, Ms. McCartney caused a warrant to be issued for the arrest of Mr. Mangus for probation violations. ¹ Again, an apparent lapse of activity occurred from the issuance of that arrest warrant until approximately July 15, 1992. Mr. Mangus' probationary period expired on June 12, 1992. On July 15, 1992, Mr. Mangus' mother contacted Ms. McCartney by telephone and informed her that Mr. Mangus had been charged with marijuana possession in Georgia in July 1990. Upon learning of these charges, Ms. McCartney requested information from the West Virginia State Police and arranged for the arrest of Mr. Mangus in Georgia for West Virginia probation violations, including the newly discovered marijuana possession charge in Georgia.

On July 28, 1992, Calhoun County Prosecutor Tony Morgan advised authorities in Georgia that arrangements could not be made to transfer Mr. Mangus back to West Virginia. ² It was not until August 3, 1992, almost two months after the expiration of his probationary term, that notice of a hearing to revoke probation was filed. That document alleged the following violations: 1) failure to make written reports to the probation office from February 1990 to June 1992; 2) absence from this state without authority from December 1989 to June 1992 (Mr. Mangus' authority to be out of West Virginia had expired in November 1989); 3) failure to report in person from November 1989 to June 1992; 4) failure to pay all court costs; 5) violation of laws of Georgia by possession of marijuana; 6) and, the act of possession of marijuana. ³

On August 12, 1992, the petition for a writ of prohibition was filed on behalf of Mr. Mangus. Mr. Mangus contends that his probationary period continued from June 12, 1989, through June 12, 1992, and that subsequent to the expiration of that probationary period on June 12, 1992, the lower court had no jurisdiction to revoke his probation. Mr. Mangus also alleges that the probation office was capable of contacting him at his address in Georgia and that he was amenable to service at all times. Furthermore, Mr. Mangus contends that the lower court lacks jurisdiction even though a violation may have occurred during the probationary term. Jett v. Leverette, 162 W.Va. 140, 247 S.E.2d 469 (1978). In Jett, we explained that "when either the statutory maximum or the shorter term [as set by the sentencing judge] has been served, the court no longer has jurisdiction to revoke probation." 162 W.Va. at 144, 247 S.E.2d at 471. Moreover, we emphasized that such jurisdictional limitation exists "even though the violation may have occurred during the probation term and regardless of the length of the underlying criminal sentence." Id.

II.

However, the Petitioner's reliance upon the Jett decision is somewhat misplaced. While we did explain in Jett that a court has no jurisdiction to revoke probation after the expiration of the probationary period even if a violation had occurred during the probationary period, we expanded our discussion of the issue in State ex rel. Ostrander v. Wilt, 164 W.Va. 184, 262 S.E.2d 420 (1980). In Ostrander, we explained that a court may revoke probation subsequent to the expiration of the probationary period under certain circumstances. In syllabus point 2 of Ostrander, we explained the following:

A circuit court has jurisdiction to revoke probation subsequent to the expiration of the probationary period where a warrant for the probationer's arrest for probation violation is issued prior to the expiration of the probationary period; where the probationer flees the jurisdiction and is apprehended only a short time prior to the expiration of his probationary period; and where the delay in hearing the probation revocation until after the expiration of the probationary period is occasioned by the actions of the petitioner and/or his counsel.

A petition for the revocation of probation had also been filed prior to the expiration of Ostrander's three-year term of probation.

We refer to Ostrander primarily to elucidate the principle that probation may indeed be revoked subsequent to the expiration of the probationary period under certain circumstances. However, the most troubling question raised in the instant case involves the related issue of the degree of diligence exercised by the probation authorities in attempting to contact Mr. Mangus or in proceeding with the arrest warrant. An arrest warrant for the probation violations, not including the marijuana charges, was filed prior to the expiration of the probationary period, as in Ostrander, but no other affirmative action was taken with regard to Mr. Mangus until Ms. McCartney was contacted by Mr. Mangus' mother subsequent to the expiration of the probationary period. We must therefore determine whether the actions of the probation office and the filing of an arrest warrant justify departure from the usual prohibition against revocation proceedings subsequent to the expiration of the probationary term. In Ostrander, other factors involving the probationer's own degree of intransigence were combined with the filing of an arrest warrant to justify revocation subsequent to the expiration of the probationary period. The record does not reflect any specific action of the probationer in this case which would indicate that he prevented the probation office from taking more substantial action against him or limited their efforts to any degree. The degree of diligence of the probation authorities may be a dispositive issue in examining this question of revocation subsequent to the expiration of the probationary period. Whether and under what circumstances such revocation of probation will be permitted must necessarily depend to some degree upon that diligence.

This approach has been employed by other jurisdictions examining the issues of revocation...