State ex rel. Eads v. Duncil

• Citation: 196 W.Va. 604,474 S.E.2d 534
• Decision Date: 14 June 1996
• Docket Number: No. 23279,23279
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia ex rel. Daniel W. EADS, Jr., Petitioner, v. William C. DUNCIL, Warden, Huttonsville Correctional Center, and the West Virginia Board of Probation and Parole, Respondents.

Page 534

474 S.E.2d 534

196 W.Va. 604

STATE of West Virginia ex rel. Daniel W. EADS, Jr., Petitioner, v. William C. DUNCIL, Warden, Huttonsville Correctional Center, and the West Virginia Board of Probation and Parole, Respondents.

No. 23279.

Supreme Court of Appeals of West Virginia.

Submitted March 26, 1996.

Decided June 14, 1996.

Syllabus by the Court

1. "Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syllabus point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).

2. The record in parole revocation cases must affirmatively show that the documents and evidence produced in the revocation proceeding have been submitted to all duly appointed and qualified members of the West Virginia Board of Probation and Parole for consideration prior to the final decision, that the number of members considering such documents and evidence constituted a quorum for conduct of business by the Parole Board, and that a majority of the duly appointed and qualified members considering the documents and evidence must concur in any order revoking parole, either by signing the order or filing with the secretary of the Parole Board a written concurrence in such revocation, which may be then so certified by the chairman of the Parole Board, the secretary of the Parole Board, or a member of the Parole Board assigned to conduct the proceeding.

3. The West Virginia Board of Probation and Parole must obey legislation and must act in a way which is not unreasonable, capricious, or arbitrary.

Matthew A. Victor, Charleston, for Petitioner.

Chad M. Cardinal, Assistant Attorney General, Charleston, for Respondents.

ALBRIGHT, Justice:

In this original habeas corpus proceeding, the relator, Daniel W. Eads, Jr., claims that the West Virginia Board of Probation and Parole, herein afterwards called the Parole Board, improperly revoked his parole. He argues that the record fails to demonstrate that the question of the revocation of his parole was considered by the Parole Board as a body, rather than by one member of it, and he claims that under the law only the Parole Board as a body, and not one member of it, has legal authority to revoke his parole. He also suggests that the Parole Board, or the member acting in its behalf, failed to make adequate findings of fact and conclusions of law and that the revocation was not supported by evidence adduced during the hearings in the case. Lastly, he claims that certain conditions placed on him in conjunction with his parole were arbitrary and capricious.

After reviewing the issues presented and the exhibits filed, this Court believes that the record fails to show that the Parole Board as a body considered the revocation, and, accordingly, the Court believes that this matter should be remanded to the Parole Board for consideration by it, as a body, of the revocation of the relator's parole if such consideration was not previously given to the question. In line with this, the Parole Board is directed to assert affirmatively on the record that the matter was considered by the Parole Board rather than a single member of it. Further, the Court believes that the Parole Board's findings were adequate and that the record, if it accurately reflects the evidence at the hearing, supports a revocation. Lastly, the Court believes that the record suggests that at least one condition of the relator's parole was arbitrary and capricious.

The documents in this case show that the relator, Daniel W. Eads, Jr., was convicted of breaking and entering and nighttime burglary in the Circuit Court of Kanawha County and was confined in the Huttonsville Correctional Institution.

On March 31, 1994, the relator was released on parole. In conjunction with his release, a number of conditions were imposed upon him. The conditions relevant to this proceeding were:

1. That the relator would complete an alcoholic treatment program approved by his parole officer;

2. That he would obtain suitable employment and remain gainfully employed;

3. That he would report to his parole officer as scheduled;

4. That he would submit to random chemical screening or drug testing;

5. That he would not leave the county of his supervision (Kanawha) without the written permission of his parole officer.

The relator was initially enrolled in a treatment program as required by the conditions of his release, but he dropped out because the focus of the program was on drug abuse rather than alcohol abuse. The relator's parole officer did not institute negative action because the relator dropped out, but rather arranged a second treatment program and ordered the relator to attend Alcoholics Anonymous meetings until the second program began. The parole officer also provided the relator with slips to be signed at the AA sessions as proof of his attendance. ¹

At the time of his release on parole, the relator did not have employment and thus, could not remain gainfully employed as required by the conditions of his parole. As a consequence, his parole officer issued a special instruction to supplement or supersede the requirement that he be gainfully employed. The special instruction required him to make at least ten "employment contacts", or contact ten prospective employers, per day.

The documents filed suggest that the relator did not comply with the conditions of his parole, and on March 30, 1995, the Division of Corrections notified him that it had reasonable cause to believe that he was in violation of parole. The notice set a preliminary parole violation hearing for Friday, April 7, 1995. In the notice, the Division of Corrections specifically charged that the relator had violated his parole in five ways. First, it charged that he had failed to participate in and complete an alcohol treatment program. Second, it charged that the relator had failed to make ten employment contacts per day as was required by his supervising parole officer. Third, it charged that the relator had failed to report to his parole officer for scheduled meetings on October 24, 1994, October 31, 1994, November 7, 1994, November 14, 1994, November 28, 1994, December 5, 1994, December 12, 1994, December 19, 1994, and December 26, 1994. Fourth, the Division of Corrections charged that the relator had refused to submit to a requested chemical screen or drug test on January 3, 1995. Lastly, the Board of Corrections charged that the relator had left Kanawha County, his prescribed area of supervision, and traveled to the Bluefield-Princeton area on March 8, 1995, without the written permission of his parole officer.

A preliminary hearing was held on April 7, 1995, and at the conclusion of that hearing it was determined that it was appropriate to proceed further with the revocation proceedings. A final hearing was conducted before one member of the Parole Board on May 18, 1995. The relator and his attorney attended that hearing, as did the relator's parole officer. The parole officer testified that the relator had violated the terms of his parole as charged in the notice of revocation proceedings. The relator did not deny all the allegations, but suggested that certain of the conditions were arbitrary and took the position that there were facts which should have excused or acted in mitigation of his noncompliance with the terms and conditions of his parole.

The specific evidence relating to the charge that the relator had not completed the approved alcohol treatment program was composed of the testimony of the relator's parole officer, who stated that the relator attended a few sessions of his initial treatment program. She also testified that she had no "factual" knowledge as to whether the relator actually attended AA sessions as required by the special instruction issued after the termination of the initial program, but did indicate that he did not return attendance slips to her. The relator, when asked about his attendance, testified:

MR. VICTOR [ATTORNEY]: Danny, did you participate in AA meetings?

MR. EADS: Yeah.

MR. VICTOR: For how long?

MR. EADS: I haven't been going.

MR. VICTOR: I mean, how many times did you go to meetings?

MR. EADS: I can't say.

MR. VICTOR: I mean how many times do you think, 10, 15.

MR. EADS: I guess I went that many times, maybe more, I ain't for sure.

The relator also suggested that his failure to participate was due to domestic problems and indicated that he had attempted to enter a mental hygiene program, but that the program would not accept him.

On the relator's failure to make the ten required job contacts per day, the relator's parole officer testified that the relator was to make at least ten employment contacts per day, and "[s]ubject was supplied with the contact sheets and was aware he had to turn then [sic] in every Monday. He turned in one. And no more after that." The parole officer also testified: "He was warned several times to start turning those in." The relator countered that he made seventeen job contacts on one day and that he tried to get a job on "some other days". He indicated that all his efforts were futile.

Relating to the charge that the relator had missed scheduled appointments with his parole officer, the evidence showed that the relator had missed nine separate weekly appointments scheduled on Mondays between October 24 and December 26, 1994. He also failed to contact his parole officer telephonically, or otherwise, about rescheduling these appointments. The relator did not deny that he missed the appointments, but took the position that he did not have a driver's license or vehicle and that he thus had transportation problems.

To support the charge that the relator refused to submit to random drug testing, the parole officer testified that on January 3, 1995, she told the relator that he was to submit to a random drug test, and "... I told him that if the results were dirty I would request a...