State v. Hosby

• Citation: 648 S.E.2d 66
• Decision Date: 07 June 2007
• Docket Number: No. 33247.,33247.
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. James K. HOSBY, Defendant Below, Appellant.
• Court: Supreme Court of West Virginia

648 S.E.2d 66

STATE of West Virginia, Plaintiff Below, Appellee, v. James K. HOSBY, Defendant Below, Appellant.

No. 33247.

Supreme Court of Appeals of West Virginia.

Submitted: May 9, 2007.

Decided: June 7, 2007.

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 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." Syllabus Point 1, State v. Duke, 200 W.Va. 356, 489 S.E.2d 738 (1997).

2. "Probation is a matter of grace and not a matter of right." Syllabus Point 1, State v. Rose, 156 W.Va. 342, 192 S.E.2d 884 (1972).

James T. Kratovil, Esq., Kratovil and Amore, PLLC, Charles Town, for Appellant.

Darrell V. McGraw, Jr., Esq., Attorney General, R. Christopher Smith, Esq., Assistant Attorney General, Charleston, for Appellee.

PER CURIAM.

This case is before this Court upon appeal of a final order of the Circuit Court of Jefferson County entered on October 24, 2005. In that order, the circuit court revoked the probation of the appellant and defendant below, James K. Hosby, and ordered him to serve the remainder of the one-year jail sentence he received as a result of his guilty plea to the misdemeanor offense of failure to pay child support, a violation of W.Va.Code § 61-5-29(1) (1999).¹ In this appeal, the appellant contends that the circuit court erred by revoking his probation.

This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order is affirmed.

I. FACTS

On April 21, 2004, the appellant was indicted on two felony counts of failure to pay child support for his daughter in violation of W.Va. Code § 61-5-29(2).² Pursuant to a child support order entered on February 9, 1998, the appellant's monthly child support payment was $322.00. The appellant entered a guilty plea to one count of the lesser misdemeanor offense of failure to pay child support in violation of W.Va.Code § 61-5-29(1)³ on August 13, 2004. As a result of his guilty plea, the appellant was sentenced to one year in the Eastern Regional Jail. However, his sentence was suspended, and he was placed on probation for five years. The terms of the probation required the appellant to, inter alia, pay restitution to his child's mother in the amount of $13,282.14.

On May 16, 2005, the appellant's probation officer, Kimberly Rowland, filed a Motion for Revocation of Probation. Ms. Rowland alleged that the appellant had violated the terms of his probation by: (1) failing to report to her in January 2005, March 2005, April 2005, and May 2005; (2) failing to make regular child support payments; (3) failing to inform her of his employment status including any change of employment; and (4) failing to make regular restitution payments. A probation revocation hearing was held on June 24, 2005.

During the probation revocation hearing, the appellant admitted that he had failed to report to his probation officer; failed to make regular child support payments; failed to report his employment status to his probation officer; and failed to make regular restitution payments. With regard to his failure to report to his probation officer in January 2005, the appellant testified that he had been traveling back and forth from Jefferson County, West Virginia, to Winchester, Virginia, to care for his mother who was in the hospital. He said that he advised his probation officer of his mother's illness during his February 2005 meeting. The appellant further testified that his mother was subsequently transferred to a hospital in Washington, D.C., and that he missed his March and April 2005 meetings with his probation officer because he was "traveling back and forth and getting everything situated." The appellant stated that he missed the May 2005 meeting with his probation officer because he had been "kicked by a horse."

The appellant made a child support payment the day before his probation revocation hearing, and so, at the time he appeared in court, he was just a few hundred dollars short of being current on the payments that had been due since his conviction. However, he had failed to make any substantial reduction in the arrearage.⁴ The appellant indicated that he was currently employed by an office supply store and was making approximately $11.80 per hour. The appellant's mother also testified on his behalf. She said that her son had cared for her while she was ill and in the hospital.

After hearing all the testimony, the court entered an order on October 24, 2005, revoking the appellant's probation and ordering him to serve the remainder of his sentence in the Eastern Regional Jail. The order was stayed pending the outcome of this appeal.

II. STANDARD OF REVIEW

In Syllabus Point 1 of State v. Duke, 200 W.Va. 356, 489 S.E.2d 738 (1997), this Court explained that,

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 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.

Accordingly, with these standards in mind, we will determine whether the circuit court erred by revoking the appellant's probation.

III. DISCUSSION

The appellant contends that his failure to report to his probation officer and to make his child support payments was the result of factors outside of his control and was not contumacious. Therefore, he concludes that the circuit court erred by revoking his probation. In support of his argument, the appellant relies upon this Court's holding in Syllabus Point 1 of State v. Minor, 176 W.Va. 92, 341 S.E.2d 838 (1986), which states that, "`Probation may not be revoked for failure to pay restitution, costs and attorneys fees unless the probationer's failure is contumacious.' Syllabus Point 2, Armstead v. Dale , 294 S.E.2d 122 (1982). The appellant says that as a result of his mother's illness and hospitalization, he was not able to work and pay restitution as he should. For the same reason, he was unable to report to his probation officer as required. He argues that the facts of his case do not support his incarceration. He points out that he made a child support payment before the hearing in an attempt to be current on the payments that had been due since his conviction. While he apparently miscalculated, he was only two payments behind at the time of the hearing. He claims that his attempt to cure his default shows that he was not contumacious. He merely exercised poor judgment in his choices.

The appellant further argues that the public's interest is not served by his incarceration. He says that if he is incarcerated, his arrearage will increase, his child will suffer, and the State will have to incur additional costs. The appellant contends that continued probation will allow him to reduce his arrearage, make current payments, and be a productive member of society.

In response, the State contends that the appellant's failure to comply with the probation agreement was, in fact, contumacious. The State concedes that the appellant was going through some difficult circumstances as a result of his mother's illness, but maintains that he could have at least called his probation officer and informed her of his situation. The appellant has admitted that he never attempted to call his probation officer. The State notes that while at the time of the hearing the appellant was almost current on his child support payments that were due since his conviction, he only made the payment the day before the hearing. Furthermore, the appellant failed to reduce the arrearage. Thus, the State reasons that the circuit court did not abuse its discretion by revoking the appellant's probation.

It is well established that "[p]robation is a matter of grace and not a matter of right." Syllabus Point 1, State v. Rose, 156 W.Va. 342, 192 S.E.2d 884 (1972). Thus, pursuant to W.Va.Code § 62-12-10 (1955),

If at any time during the period of probation there shall be reasonable cause to believe that the probationer has violated any of the conditions of his probation, the probation officer may arrest him with or without an order or warrant, or the court which placed him on probation, or the judge thereof in vacation, may issue an order for his arrest, whereupon he shall be brought before the court, or the judge thereof in vacation, for a prompt and summary hearing. If it shall then appear to the satisfaction of the court or judge that any condition of probation has been violated, the court or judge may revoke the suspension of imposition or execution of sentence, impose sentence if none has been imposed, and order that sentence be executed. In computing the period for which the offender is to be imprisoned, the time between his release on probation and his arrest shall not be taken to be any part of the term of his sentence. If, despite a violation of the conditions of probation, the court or judge shall be of the opinion that the interests of justice do not require that the probationer serve his sentence, the court or judge may, except when the violation was the commission of a felony, again release him on probation.

The record in this case clearly shows that the appellant violated the terms and conditions of his probation. As noted by the circuit court,

[The appellant] did not...