State v. Arbaugh

Decision Date02 March 2004
Docket NumberNo. 31326.,31326.
Citation595 S.E.2d 289,215 W.Va. 132
PartiesSTATE of West Virginia, Plaintiff below, Appellee, v. Tony Dean ARBAUGH, Jr., Defendant below, Appellant.
CourtWest Virginia Supreme Court
Concurring Opinion of Justice Albright March 5, 2004.

Concurring and Dissenting Opinion by Justice Starcher March 31, 2004.

Dissenting Opinion by Chief Justice Maynard April 7, 2004.

Amanda H. See, See & See, Moorefield, Counsel for Appellant.

Darrell V. McGraw, Jr., Attorney General, Robert D. Goldberg, Assistant Attorney General, Charleston, Counsel for Appellee.

Chief Justice MAYNARD and Justice DAVIS dissent and reserve the right to file dissenting opinions.

Justice ALBRIGHT concurs and reserves the right to file a concurring opinion.


Tony Dean Arbaugh, Jr. (hereinafter "Mr. Arbaugh") appeals the denial of his W. Va. R. Crim P. 35(b) motion by the Circuit Court of Pendleton County, West Virginia. In this motion, he requested a reduction in sentence in the nature of a grant of probation so that he could pursue a rehabilitation program under the auspices of Youth System Services, Inc. Having read the briefs, reviewed the record, and heard oral argument, we reverse and remand with directions to the circuit court to grant Mr. Arbaugh probation to follow his proposed rehabilitation plan. We further direct that the rehabilitation plan proposed by Mr. Arbaugh should include specific provisions that Mr. Arbaugh undergo both sexual offender counseling and substance abuse counseling.


The appellant in this case, Mr. Arbaugh, has led a long and painful life. He endured a long history of sexual assault at the hands of two of his adult male family members, beginning when he was seven or eight years old. These assaults included oral sex, sodomy, mutual masturbation, and "dry humping." Mr. Arbaugh was also sexually assaulted by one of his teachers for a period of four years. Arbaugh v. Board of Educ., 214 W.Va. 677, 680, 591 S.E.2d 235, 238 (2003). As a result of these attacks, Mr. Arbaugh began acting out sexually against his younger half brother.1 As a result of this conduct, a delinquency petition was filed on February 28, 1997, when Mr. Arbaugh was fifteen years old.2 After a hearing, Mr. Arbaugh was transferred to adult jurisdiction on April 7, 1997. On June 25, 1997, he waived his right to grand jury indictment and accepted the filing of an information charging him with first degree sexual assault. On this same day, he pled guilty under the information to one count of first degree sexual assault. In exchange for this plea, the State dropped an additional nine counts of first degree sexual assault and agreed not to oppose Mr. Arbaugh's placement in a non-secure facility and disposition under W. Va.Code § 49-5-13(e) (2001 Repl.Vol.).3 The State also agreed that, if he did not present a security risk or create any further problems, it would recommend placement in a youthful offender center upon his 18th birthday.

On September 4, 1997, the court sentenced Mr. Arbaugh to an indeterminate term of fifteen to thirty-five years and restitution. The court, however, suspended sentence due to Mr. Arbaugh's age and his enrollment in the Chestnut Ridge Treatment Center. The court ordered that, once finished at Chestnut Ridge, Mr. Arbaugh was to reside in a secure juvenile facility. The court ordered sentence reevaluation when Mr. Arbaugh turned eighteen.

On August 20, 1998, the court placed Mr. Arbaugh in a group home run by Stepping Stones, Inc. Unfortunately, Mr. Arbaugh's behavior digressed while at Stepping Stones. Therefore, the State filed a motion to reconsider disposition. The circuit court transferred Mr. Arbaugh to the Eastern Regional Juvenile Facility.

After he turned eighteen, the circuit court transferred Mr. Arbaugh to the Anthony Center under the Youthful Offender Act, W. Va.Code §§ 25-4-1 to -12 (Repl.Vol.2001) The court said it would review the sentence when Mr. Arbaugh was released from the youthful offender program.

After Mr. Arbaugh successfully completed the youthful offender program, the court placed him on five years probation. The probation terms required, inter alia, adherence to all the probation officer's rules and regulations, that he not violate any laws nor have any alcohol or drugs, and that he obtain counseling.

On December 11, 2000, the State petitioned to revoke probation. At the revocation hearing, Mr. Arbaugh admitted to having used marijuana and alcohol, failing to obtain on-going counseling, and failing to pay his five dollar a month probation fee. Based on these violations, and several other violations, the court revoked probation.

On February 1, 2001, Mr. Arbaugh timely filed a motion under W. Va. R. Crim P. 35(b) to reduce his sentence by granting him probation to pursue another rehabilitation program.4 At the Rule 35(b) hearing, Mr. Arbaugh presented the testimony of Paul Flanagan, who works for Youth Systems Services (hereinafter "YSS"). Mr. Flanagan is a graduate of the Criminal Justice Police in the United Kingdom and is a volunteer with the Marist Brothers, a Roman Catholic religious community. Mr. Flanagan explained that YSS is a unique consulting program that for the last thirty years has worked with over 16,000 youngsters and averaging 600 annually. YSS has won many national awards and is one of only six private detention facilities in the United States. Mr. Flanagan explained that YSS was not asking to be paid for this program for Mr. Arbaugh, but chose to do it because they believed that Mr. Arbaugh "can be saved and can be brought around to a pro-social life. The pro-social adult to serve in the community."

Mr. Flanagan explained that Mr. Arbaugh's YSS program would consist of removing him from the Eastern Panhandle to the Northern Panhandle so as to remove him from the influences that initially caused his conduct. Mr. Arbaugh would reside in community apartments coupled with a variety of skill development programs so as to prepare him for independent living. He would be employed as a janitor at a local Catholic high school, and would work under the supervision of Brother Dan O'Riordian. Mr. Arbaugh would also be provided supportive services through the Marist Brothers and would have access to designated YSS staff "24/7" for crisis situations. YSS would provide the circuit court with any required reports. Notwithstanding the fact that Mr. Arbaugh had a rehabilitation program in place (that would not cost the State any money), the circuit court denied Mr. Arbaugh's Rule 35(b) motion explaining that Mr. Arbaugh had been

provided everything that the Court was aware of before and the Court has showed him mercy before and is very sympathetic to his situation, but nonetheless feels that also the Court has an obligation to the public and because of that the Court is not going to—to grant his relief request.

It is from this order Mr. Arbaugh seeks appellate relief.


The standard of review in this case is found in syllabus point 1 of State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996):

In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under Rule 35 of the West Virginia Rules of Criminal Procedure, we apply a three-pronged standard of review. We review the decision on the Rule 35 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.

Mr. Arbaugh argues that the circuit court abused its discretion in failing to grant his Rule 35(b) motion to reduce his sentence to probation.5 The State counters that the Youthful Offender Act mandates that once an original probation is revoked then a circuit court is without jurisdiction to again grant probation and is obligated to execute the sentence. It alternatively argues that the circuit court did not abuse its discretion in granting probation given Mr. Arbaugh's past rehabilitation programs. We find that the circuit court abused its discretion.6

We first reject the proposition that the Youthful Offender Act, W. Va.Code §§ 25-4-1 to 12, prohibits a circuit court from granting probation under Rule 35(b) after it has revoked a probation it originally granted under the Act. The State cites W. Va.Code § 25-4-6's language that upon successful completion of the youthful offender program, "the court shall immediately place the offender on probation. In the event the offender's probation is subsequently revoked, the judge shall impose the sentence the young adult offender would have originally received had the offender not been committed to the center and subsequently placed on probation." The State asserts that the language "shall impose the sentence" to support the claim that the legislature's intent was to prevent any subsequent probation once the original Youthful Offender Act probation is revoked. We must disagree with the State.

Even assuming the State is correct in its reading of W. Va.Code § 25-4-6, we have long recognized that our judicially promulgated rules of practice are constitutionally based and supersede any conflicting statutory provisions. As we held in syllabus point 1 of Bennett v. Warner, 179 W.Va. 742, 372 S.E.2d 920 (1988), "[u]nder article eight, section three of our Constitution, the Supreme Court of Appeals shall have the power to promulgate rules for all of the courts of the State related to process, practice, and procedure, which shall have the force and effect of law." We have more recently and more specifically held, "[t]he West Virginia Rules of Criminal Procedure are the paramount authority controlling criminal proceedings before the circuit courts of this jurisdiction; any statutory or common-law procedural rule that conflicts with these Rules is...

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