State v. Duke

• Decision Date: 10 June 1997
• Docket Number: No. 23905,23905
• Citation: 200 W.Va. 356,489 S.E.2d 738
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. James Daniel DUKE, Defendant Below, Appellant.

Page 738

489 S.E.2d 738

200 W.Va. 356

STATE of West Virginia, Plaintiff Below, Appellee, v. James Daniel DUKE, Defendant Below, Appellant.

No. 23905.

Supreme Court of Appeals of West Virginia.

Submitted May 6, 1997.

Decided June 10, 1997.

[200 W.Va. 358] Syllabus by the Court

1. When reviewing the findings of fact and conclusions of law of a circuit court sentencing a defendant following a revocation of probation, we apply a three-pronged standard of review. We review the decision on the probation revocation motion under an

[200 W.Va. 359] 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

2. Where a circuit court places a criminal defendant on probation for an offense he/she committed while on probation for a previous offense, the court must make clear on the record the precise nature of the subsequently imposed probationary term (i.e., extension of prior probationary period or separate and distinct subsequent probationary term) and ensure that the defendant has a clear and thorough understanding of the circuit court's intent in placing him/her on probation for the subsequent crime.

3. In order to ensure the record is clear with regard to the circuit court's intention in placing a criminal defendant on probation for a subsequent offense where the defendant is currently on probation for a prior offense, and the defendant's understanding of the court's intention, the court should make three inquiries on the record as to the defendant's understanding of the circumstances surrounding the imposition of probation: (1) the possible penalties for the offenses committed, (2) the nature and conditions of probation, and (3) the consequences of a probation revocation.

4. The first probation imposition inquiry requires the circuit court to inform the defendant of: (1) the minimum and maximum penalties to which the defendant could be sentenced for the prior, subsequent, and/or violation of probation offenses (if the court suspends imposition of sentence) or the minimum and maximum penalties to which the defendant has been sentenced (if the court suspends execution of sentence) and (2) the effect of the court's decision to suspend imposition or execution of sentence.

5. Pursuant to the second probation imposition inquiry, the circuit court must ensure the defendant understands: (1) the defendant has no right to probation, and the decision to grant the conditional liberty of probation is entirely within the circuit court's discretion; (2) the nature of the probationary period imposed (i.e. whether the court intends the probationary period to be an extension of a pre-existing probationary period for a prior offense or a separate and distinct term of probation for the subsequent offense); and (3) the conditions attached to the imposition of probation.

6. The third and final probation imposition inquiry directs the circuit court to advise the defendant that: (1) revocation of probation and the imposition of sentence or the execution of a suspended sentence could result if the defendant violates one or more conditions of probation and (2) upon revocation of probation, the court could impose sentence and/or execute sentence for the prior offense, the subsequent offense, and/or the offense constituting a violation of probationary conditions, but sentencing for the offense constituting a violation of probation is proper only if the defendant has been convicted of, or has pleaded guilty to, such offense.

7. It is not sufficient for the circuit court to explain to a criminal defendant his/her rights in legal terminology alone, but rather the court should translate formal terms into language which a layperson defendant can understand.

Darrell V. McGraw, Jr., Attorney General, Dawn E. Warfield, Deputy Attorney General, Charleston, for Appellee.

Kevin L. Neiswonger, Public Defender Corporation, Moundsville, for Appellant.

DAVIS, Justice:

The defendant below and appellant herein, James Daniel Duke, appeals the January 18, 1996, order of the Circuit Court of Wetzel County. In this order, the circuit court revoked the probation previously ordered to be served by the defendant, and scheduled to expire July 13, 1996, as a result of the defendant having used a controlled substance during his probationary period. The court further sentenced the defendant to a term of one to five years in the state penitentiary commensurate with the defendant's previously suspended sentence for third-degree sexual assault.

Before this Court, the defendant argues that the circuit court erred by executing his By contrast, the State submits that the defendant's original probationary term for sexual assault was extended in conjunction with his plea of guilty to brandishing. Accordingly, the State contends that the circuit court properly revoked the defendant's probation and sentenced him to the previously suspended sentence of one to five years for third-degree sexual assault.

[200 W.Va. 360] previously suspended sentence for third-degree sexual assault. In this regard, the defendant contends that, on July 13, 1995, he completed the three-year probationary period for his sexual assault offense. He explains further that, at the time his probation was revoked due to marijuana use, he was serving a separate, one-year term of probation for a subsequent charge of brandishing a weapon. Duke asserts that this brandishing probationary term was scheduled to end on July 13, 1996, and had been granted in conjunction with the suspension of the ninety-day sentence initially imposed upon him for this crime.

Upon a review of the record, and for the reasons stated below, we reverse the order of the Circuit Court of Wetzel County and remand this case for entry of an order consistent with our decision.

I. FACTUAL AND PROCEDURAL HISTORY

In April and May, 1992, the defendant was arrested on two charges of third-degree sexual assault, in violation of W.Va.Code § 61-8B-5 (1984) (Repl.Vol.1992). The State filed an information charging the defendant with one count of third-degree sexual assault. Pursuant to plea negotiations, the defendant pleaded guilty to this felony, and the circuit court sentenced him to one to five years in the state penitentiary for one count of third-degree sexual assault. The circuit judge then suspended the defendant's sentence and placed him on probation for a period of three years, beginning July 13, 1992.

During his three-year probationary period, on June 10, 1993, the defendant was arrested for brandishing a knife in violation of W.Va.Code § 61-7-11 (1989) (Repl.Vol.1992). As a result of plea negotiations, the defendant pleaded guilty to this misdemeanor and was sentenced to ninety days in the county jail. During these proceedings, counsel for the defendant filed, on October 29, 1993, a "Petition for Probation" ¹ in the Circuit Court of Wetzel County. ² This petition requested the circuit court "to suspend execution of Defendant's sentence and release Defendant on probation." In this regard, counsel specifically requested the circuit court to "suspend the sentence received below and extend Defendant's current probation by one (1) year[.]" Accordingly, the circuit court, by order entered November 15, 1993, ruled that "the defendant's petition will be granted and the defendant will be placed on probation for a period of one (1) year under the terms and conditions of the Probation Officer. Whereupon While completing the remainder of his probationary period, and at the request of his probation officer, the defendant submitted to random drug screening on December 14, 1995. The defendant's sample tested positive for "Cannabinoids" (marijuana). Consequently, the defendant's probation officer filed a "Petition to Revoke Probation" in felony case number 92-F-19 (the 1992 third-degree sexual assault case), reciting that:

[200 W.Va. 361] the defendant's probation shall start on July 13, 1995 [sic] and end on July 13, 1996."

The defendant has violated the following rules and regulations of his Probation:

(1) Shall not violate any Criminal Law of this or any other State of the United States of America.

(3) Shall comply with rules and regulations of Probation as handed down by the Court.

(9) You are not to use alcohol or controlled substances.

During the hearing held in this matter on January 18, 1996, the defendant moved to dismiss the State's petition to revoke probation. Considering the evidence presented and the parties' arguments, the circuit court denied the defendant's motion to dismiss the State's petition listing the following reasons:

The petition for probation was filed specifically requesting that the defendant's probation be extended for a period of one year;

Further, that the defendant was not incarcerated for the brandishing charge, and the Court extended his probation for a period of one year;

Further, that it was not the Court's intention ³ to have the defendant's probation for the felony to end and then the one year probationary period begin for a period of one year; that the defendant was given the benefit of the doubt and his probation was extended for a period of one year[.]

The court then found as fact:

That the defendant was sentenced, by virtue of a plea, in July, 1992, and given probation after he was sentenced to not less than one nor more than five years in the West Virginia Penitentiary for Men for third degree sexual assault;

Further, that the defendant was given a copy of the probation officer's rules and regulations, apparently not at the time the sentence was imposed, but on the 3rd day of August, 1992, and the defendant signed and agreed to consent to those rules and regulations as administered;

Further, that one of the rules was that the defendant was not to use any alcohol or controlled substances, or be present in a bar or tavern;

Further, that by...