State v. Holcomb, No. 17175

• Court: Supreme Court of West Virginia
• Writing for the Court: McGRAW; In any case wherein an indigent person has filed a notice of intent to seek an appeal or writ of error ..., the court, or judge thereof in vacation, upon written request of such convicted person or his counsel, presented within sixty days aft
• Citation: 178 W.Va. 455,360 S.E.2d 232
• Parties: STATE of West Virginia v. Tony HOLCOMB.
• Docket Number: No. 17175
• Decision Date: 22 July 1987

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360 S.E.2d 232 178 W.Va. 455 STATE of West Virginia
v.
Tony HOLCOMB. No. 17175. Supreme Court of Appeals of West Virginia.
July 22, 1987.

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[178 W.Va. 456] Syllabus by the Court

1. The Due Process Clause of the Fourteenth Amendment of the Constitution of the United States requires a probationer who is arrested for violating the conditions of his probation to be afforded both a prompt preliminary hearing and a final revocation hearing.

2. In the absence of a showing of prejudice to the substantial rights of the probationer, an order revoking probation will not be reversed for failure to hold a prompt preliminary revocation hearing.

3. The mere fact of a subsequent criminal conviction, after a trial at which

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the probationer was entitled to the full panoply of rights guaranteed a criminal [178 W.Va. 457] defendant, is, in and of itself, sufficient evidence of a probation violation to warrant revocation of probation.

4. A probation revocation proceeding is not intended to serve the function of an appeal from an intervening criminal conviction.

5. In the absence of statutory authority to the contrary, a circuit court has the power to order a sentence imposed or executed for violation of probation to run consecutively with a sentence imposed by another court for an intervening crime.

6. Rule 32(a)(1) of the West Virginia Rules of Criminal Procedure confers a right of allocution upon one who is about to be sentenced for a criminal offense.

Robert Schulenberg, III, Asst. Atty. Gen., for appellant.

Carrie L. Newton, Daniel C. Taylor, Goodwin & Goodwin, Ripley, for appellee.

McGRAW, Chief Justice.

This is an appeal by the appellant, Tony Holcomb, from a final order of the Circuit Court of Jackson County, entered June 27, 1985, which revoked the probation imposed upon his conviction of the offense of breaking and entering and sentenced him to imprisonment in the penitentiary for a period of not less than one nor more than ten years. The appellant challenges the validity of the revocation proceedings and of the sentence imposed. We find no error warranting reversal of the probation revocation, but we remand the case for resentencing.

The facts of this case are essentially undisputed. On March 31, 1983, the appellant pled guilty to a charge of breaking and entering in the Circuit Court of Jackson County. By order entered August 12, 1983, the trial court suspended imposition of sentence and placed the appellant on probation for a period of three years. In April 1984, the appellant's probation was extended for an additional two years.

On September 26, 1984, the appellant was arrested in connection with an armed robbery which occurred in Parkersburg, Wood County during his probationary period. On March 7, 1985, the appellant was convicted, after a jury trial in the Circuit Court of Wood County, of the felony of aggravated robbery. By order dated May 7, 1985, the Circuit Court of Wood County sentenced the appellant to ten years' imprisonment in the penitentiary and ordered him remanded to the custody of the Department of Corrections.

Meanwhile, arrest warrants had been issued in Jackson County on April 3, 1985, charging the appellant with violating his probation. Shortly after sentence was imposed by the Circuit Court of Wood County, the appellant was transferred to the Jackson County jail and, on May 23, 1985, was served with notice of a hearing to revoke his probation on the ground that he had been subsequently convicted of a felony. ¹

On June 3, 1985, the date set for the final revocation hearing in the Circuit Court of Jackson County, the appellant's court-appointed

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attorney moved to dismiss the proceedings because there had been no preliminary revocation hearing. The court denied the motion on the ground that the appellant's detention in the Jackson County jail did not result in any deprivation of liberty which would entitle him to such a hearing. The final revocation hearing was continued on the motion of defense counsel and again on motion of the State. Defense counsel's motion for a transcript of the criminal proceedings in Wood County was denied.

On June 26, 1985, the final revocation hearing was conducted. The evidence consisted primarily of the orders of conviction [178 W.Va. 458] and commitment entered by the Circuit Court of Wood County in the aggravated robbery case and the testimony of probation officers from both counties who identified the appellant as the person convicted of that crime. Upon this evidence, the circuit court revoked the appellant's probation.

Defense counsel thereupon moved that the appellant's sentence for the breaking and entering conviction run concurrently with the sentence for the robbery conviction and requested a later sentencing date to present evidence from the appellant's former employer in mitigation of punishment. The court held that a further hearing was unnecessary and imposed a sentence of imprisonment in the penitentiary for not less than one nor more than ten years for the crime of breaking and entering, such sentence to run consecutively with the sentence imposed by the Circuit Court of Wood County. This ruling was reduced to a final order entered June 27, 1985. It is from this order that the appellant prosecutes this appeal.

I.

The appellant's first contention on appeal is that the lower court erred in denying his motion for a preliminary revocation hearing. He contends that the failure to conduct a preliminary hearing amounts to a denial of due process and renders the proceedings against him void.

In Louk v. Haynes, 159 W.Va. 482, 223 S.E.2d 780 (1976), we recognized that the due process clause of the Fourteenth Amendment of the United States Constitution requires a probationer who is arrested for violating the conditions of his probation to be afforded both a prompt preliminary hearing and a final revocation hearing. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). We have also recognized, however, that the failure to afford a probationer a prompt preliminary hearing does not, in all circumstances, require reversal of an order revoking probation. "Most courts which have dealt with the failure to accord a probationer or parolee a prompt preliminary hearing focus on whether any prejudice has resulted. Unless prejudice can be shown which affects the integrity of the final revocation hearing, it will not be reversed." [Citations omitted.] State v. Dawson, 168 W.Va. 101, 282 S.E.2d 284, 286 (1981). See also State v. Goff, 168 W.Va. 285, 284 S.E.2d 362 (1981). In other words, in the absence of a showing of prejudice to the substantial rights of the probationer, an order revoking probation will not be reversed for failure to hold a prompt preliminary revocation hearing.

Here, no prejudice was alleged to have resulted from the failure to conduct a preliminary revocation hearing. The appellant had already been committed to the custody of the Department of Corrections upon his conviction of aggravated robbery in the Circuit Court of Wood County. Since the appellant would have been lawfully incarcerated regardless of the outcome of the probation revocation proceedings, his detention in the Jackson County Jail pending the final revocation proceeding involved no deprivation of liberty. The appellant was afforded notice of the grounds upon which revocation was sought and an opportunity to present evidence in his behalf at the final revocation hearing. The fact of the appellant's subsequent felony conviction was not disputed at any time.

In view of the facts of this case, we must conclude that the failure to conduct a preliminary hearing did not result in any prejudice

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to the appellant. To reverse the revocation order and remand the case for new revocation proceedings in order to afford the appellant a new preliminary hearing would be a meaningless gesture at this stage. See United States v. Basso, 632 F.2d 1007 (2d Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1480, 67 L.Ed.2d 613 (1981); United States v. Sutton, 607 F.2d 220 (8th Cir.1979); Collins v. Turner, 599 F.2d 657 (5th Cir.1979); Lambur v. Chew, 356 F.Supp. 751 (E.D.Va.1973); People v. Gladdis, 77 Mich.App. 91, 257 N.W.2d 749[178 W.Va. 459] (1977); Pearson v. State, 308 Minn. 287, 241 N.W.2d 490 (1976); Ewing v. Wyrick, 535 S.W.2d 442 (Mo.1976); State v. Ellefson, 334 N.W.2d 56 (S.D.1983). Accordingly, we decline to reverse the judgment of the circuit court on this ground.

II.

The appellant next contends that the lower court erred in refusing his motion for a transcript of the proceedings in Wood County. The appellant asserts that the failure to provide him with a transcript amounted to a denial of due process in that it deprived him of the opportunity to challenge the testimony, evidence, procedures and findings upon which his conviction was based and to prepare a defense against revocation on the ground that the conviction was invalid.

It is well-settled that a defendant who has been convicted of a crime is entitled to a transcript of the proceedings against him for purposes of effectively prosecuting an appeal from such conviction and that the failure to provide such transcript, upon a timely request therefor, violates due process. Mayle v. Ferguson, 174 W.Va. 430, 327 S.E.2d 409 (1985); Rhodes v. Leverette, 160 W.Va. 781, 239 S.E.2d 136 (1977); State ex rel. Johnson v. McKenzie, 159 W.Va. 795, 226 S.E.2d 721 (1976). Where the defendant is indigent, his right to a free transcript for appeal purposes is guaranteed by statute, ² as well as by the state and federal constitutions. See, e.g., Mayle v. Ferguson, supra; State v. Moore, 166 W.Va. 97, 273 S.E.2d 821 (1980); State ex rel. Tune v. Thompson, 151 W.Va. 282, 151 S.E.2d 732 (1966).

Probation revocation proceedings are not, however, part of a criminal prosecution, and are not subject to...