State ex rel. Ostrander v. Wilt

• Decision Date: 22 January 1980
• Docket Number: No. 14623,14623
• Citation: 164 W.Va. 184,262 S.E.2d 420
• Parties: STATE ex rel. Thomas D. OSTRANDER v. Howard W. WILT, Sheriff of Jefferson County, et al.
• Court: West Virginia Supreme Court

Page 420

262 S.E.2d 420

164 W.Va. 184

STATE ex rel. Thomas D. OSTRANDER v. Howard W. WILT, Sheriff of Jefferson County, et al.

No. 14623.

Supreme Court of Appeals of West Virginia.

Jan. 22, 1980.

Syllabus by the Court

1. In determining whether a preliminary hearing for an alleged probation violation has been held without unreasonable delay, three factors should be considered: (1) the length of and reason for the delay; (2) the probationer's assertion of his right; and, (3) the prejudice to the defendant.

2. 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.

Rice, Hannis & Douglas and Charles F. Printz, Jr., Martinsburg, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Gray Silver III, Asst. Atty. Gen., Charleston, for respondents.

CAPLAN, Justice:

In this original proceeding in habeas corpus the petitioner, Thomas D. Ostrander, seeks his release from incarceration by the State. His grounds therefor are that: (1) the State failed to afford him a preliminary hearing for alleged probation violation within a reasonable time after his return to this jurisdiction, and, (2) the State failed to afford him a preliminary and final revocation hearing prior to the expiration of his probationary period. Upon consideration of the circumstances of this case and the law applicable thereto, we deny the relief sought.

On April 28, 1976, in the Circuit Court of Jefferson County, the petitioner entered a guilty plea to the charge of breaking and entering. Subsequent to a sixty-day period of diagnostic evaluation at Huttonsville and the receipt of a report thereon, the court, on June 24, 1976, sentenced the petitioner to a term of one to ten years in the state penitentiary. The sentence was stayed, however, and the petitioner was placed on probation for a period of three years upon certain terms and conditions. One of such conditions was that he was not to leave the State without permission of the court.

On January 9, 1979, a petition for the revocation of the petitioner's probation was filed in the Circuit Court of Jefferson County. Such revocation was sought by a probation officer serving Jefferson County on the grounds that the petitioner was residing outside the State without the permission of the court, that he had been convicted of certain crimes and had failed to pay court costs. On the same day a capias and bench warrant were issued by the circuit court for the petitioner's arrest.

The petitioner was arrested in Phoenix, Arizona on a charge of larceny in May, 1979. When advised of the petition pending in West Virginia for the revocation of his probation, the petitioner waived extradition and was returned on May 24, 1979.

Let us first consider the factual situation upon which the petitioner contends that the circuit court lacks jurisdiction to hear the probation revocation matter. Giving rise to this contention is his allegation that he was not afforded a preliminary hearing within a reasonable time after his return. The petitioner was returned to West Virginia on May 24, 1979 and on that date counsel was appointed to assist him. His counsel, by letter dated June 5, 1979, addressed to the appropriate magistrate in Jefferson County, requested a preliminary hearing as soon as possible. Therein, however, he advised the magistrate that he would be unavailable from June 16 through June 23 and that he had several hearings set for June 25.

Based on the date of the court's sentencing order, the petitioner's probationary period terminated on Sunday, June 24, 1979. On June 26, 1979, counsel for petitioner agreed that the preliminary hearing be set for July 10, 1979. At the hearing held on that date, probable cause was found to require a final probation revocation hearing. Bail was denied on July 17 and the petitioner signed a waiver of a prompt and summary hearing. Thereupon, the court set a final hearing for October 3, 1979. This petition for a writ of habeas corpus was filed on August 2, 1979.

The first issue is whether, in the circumstances of this case, the lapse of time between the arrest and the preliminary hearing is so unreasonable as to constitute a violation of the petitioner's statutory or constitutional rights.

W.Va.Code, 1931, 62-12-10, as amended, provides that upon arrest for probation violation the probationer be brought before the court "for a prompt and summary hearing." In Louk v. Haynes, W.Va., 223 S.E.2d 780 (1976), this Court, pursuant to the dictates of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), said:

The preliminary hearing . . . is a hearing held at the time of arrest and detention to determine whether there is probable cause to believe that the accused has committed a violation of his probation or parole. The hearing must be held by an independent officer as promptly as convenient after arrest, while information is still fresh and sources are available.

In view of the requirement in the above statute, "a prompt and summary hearing", and the language in Louk, "hearing must be held . . . as promptly as convenient after arrest", it becomes clear that a preliminary probation revocation hearing must be afforded the probationer without unreasonable delay. "An approach entirely dependent upon the length of delay, however, is not satisfactory." United States v. Companion, 545 F.2d 308 (2d Cir. 1976). In that case there was an 87-day delay before the probationer had a hearing. The Companion court held that the 87-day delay was not unreasonable in that case and in doing so adopted an Ad hoc balancing...