State ex rel. Rubenstein v. Bloom
| Decision Date | 17 March 2015 |
| Docket Number | No. 14–1043.,14–1043. |
| Citation | 235 W.Va. 70,771 S.E.2d 717 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia ex rel. Jim RUBENSTEIN, Commissioner of the West Virginia Division of Corrections, Petitioner v. The Honorable Louis H. BLOOM, Judge of the Circuit Court of Kanawha County; and Tracie Dennis, Respondents. |
Patrick Morrisey, West Virginia Attorney General, Misha Tseytlin, General Counsel, John H. Boothroyd, Assistant Attorney General, Charleston, WV, for the Petitioner.
The Hon. Louis H. Bloom, Judge of the Circuit Court of Kanawha County, Charleston, WV, J. Timothy DiPiero, Esq., Lonnie C. Simmons, Esq., DiTrapano, Barrett, DiPiero, McGinley & Simmons, PLLC, Charleston, WV, for Respondent Tracie Dennis.
This original proceeding in prohibition is upon the petition of Jim Rubenstein, Commissioner of the West Virginia Division of Corrections (the “Division”), challenging the order of the Circuit Court of Kanawha County which granted the respondent, Tracie Dennis (“Dennis”), work release from the South Central Regional Jail. The work release was granted for the three and a half month period between the entry of the order granting work release on August 15, 2014, and the commencement of Dennis's probation on December 1, 2014.
The Division contends that, by granting Dennis work release after she had been placed in the Division's custody, awaiting transfer from the Regional Jail to the Lakin Correctional Facility for Women, the circuit court exceeded its authority and interfered with the Division's responsibilities to its inmates and to the public.
This Court concludes, however, that the circuit court had the authority and the discretion to grant Dennis work release, which the circuit court limited to certain conditions. Therefore, the Division's request for relief in prohibition is denied.1
The underlying case is State v. Dennis, no. 14–F–312(I) (Kanawha County), wherein Dennis entered a plea of guilty on June 25, 2014, to embezzlement, a felony under W.Va.Code, 61–3–20 [2004]. Thereafter, on July 29, 2014, the circuit court entered an order sentencing Dennis to an indeterminate term in the penitentiary of not less than one nor more than ten years.
The order further directed that, four months later, “said sentence be suspended on the 1st day of December, 2014 for a period of five (5) years probation,” on the condition that Dennis pay restitution in the amount of $500.00 per month. The order concluded by directing that Dennis be removed from the South Central Regional Jail to the Division of Corrections “as soon as practicable.”2
Approximately two weeks later, on August 15, 2014, the circuit court entered an order granting a motion filed by Dennis for work release during her incarceration in the Regional Jail. Finding Dennis to be a suitable candidate for work release, the order provided:
Alleging that the August 15, 2014, work release order prevented the Division from carrying out its responsibilities to its inmates and to the public, the Division filed a motion to set aside Dennis's work release or, in the alternative, place her on immediate probation and, therefore, outside the Division's responsibility. No ruling on the motion was entered by the circuit court.
The Division then filed a petition for a writ of prohibition in this Court challenging the August 15, 2014, work release order.
This Court has original jurisdiction in prohibition proceedings pursuant to art. VIII, § 3, of the Constitution of West Virginia. In considering whether to grant relief in prohibition, this Court stated in the syllabus point of State ex rel. Vineyard v. O'Brien, 100 W.Va. 163, 130 S.E. 111 (1925) : “The writ of prohibition will issue only in clear cases where the inferior tribunal is proceeding without, or in excess of, jurisdiction.” Accord syl. pt. 1, State ex rel. Progressive Classic Ins. Co. v. Bedell, 224 W.Va. 453, 686 S.E.2d 593 (2009).
In the current matter, in which the Division contends that the circuit court exceeded its jurisdiction in granting Dennis work release, the relevant guidelines are found in State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). Syllabus point 4 of Hoover holds:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Accord State ex rel. Fillinger v. Rhodes, 230 W.Va. 560, 564, 741 S.E.2d 118, 122 (2013) ; syl. pt. 2, State ex rel. West Virginia Nat'l Auto Ins. Co. v. Bedell, 223 W.Va. 222, 672 S.E.2d 358 (2008).
The Division does not question the ruling of the circuit court, reflected in the initial order of July 29, 2014, suspending Dennis's sentence, granting her probation as of December 1, 2014, and requiring the payment of restitution. Although Dennis was convicted of the felony offense of embezzlement, the crime did not involve the use of a firearm or a term of life imprisonment.4 The July 29, 2014, order is Dennis's sentencing order and, as such, is entitled to deferential review. Syllabus point 1 of State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997), holds: “The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.” Accord State v. Grimes, 226 W.Va. 411, 421, 701 S.E.2d 449, 459 (2009).
The Division, however, challenges the subsequent work release order entered on August 15, 2014, which allowed Dennis's absence from the Regional Jail five days per week, within specified hours, for the three and a half months prior to her release and the commencement of her probation.
The August 15, 2014, order required Dennis to report directly to her employer, Enerfab Electric Company, not leave the premises, and then return directly to the Regional Jail. The stated purpose of the work release was to assist Dennis in paying restitution. Dennis's motion, which resulted in the August 15, 2014, order, alleged that she had been employed with Enerfab since 2011 but that Enerfab could not keep her job open until December 1, 2014, when Dennis would begin probation. While those factual circumstances are not contested, the Division contends that the circuit court exceeded its authority in granting work release because Dennis had already been committed to the custody of the Division. According to the Division, the law did not permit the circuit court to place Dennis in the Division's custody and then unilaterally remove her from the Division's responsibilities with respect to its inmates and the safety of the public. Specifically, the Division asserts that Dennis was afforded work release before the Division had an opportunity to evaluate the risk Dennis might pose to the public.5
In terms of risk evaluation, however, we note that the decision to grant Dennis probation as of December 1, 2014, was made by the circuit court pursuant to the July 29, 2014, sentencing order prior to the granting of work release approximately two weeks later. Consequently, it would be difficult to argue that the circuit court's conclusion that Dennis should be granted probation is materially distinguishable from its finding, soon after, that Dennis was a “suitable candidate” for work release. In the context of probation, W.Va.Code, 62–12–7(b) [2013], provides, in part:
Unless otherwise directed by the court, the probation officer shall, in the form adopted by the Supreme Court of Appeals of West Virginia, make a careful investigation of, and a written report with recommendations concerning, any prospective probationer. Insofar as practicable, this report shall include information concerning the offender's court and criminal record, occupation, family background, education, habits and associations, mental and physical condition, the names, relationship, ages and condition of those dependent upon him or her for support and any other facts that may aid the court in determining the propriety and conditions of his or her release on probation.
See also W.Va.Code, 62–12–6(a)(1) [2013] (...
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