State v. Inscore, 32855.

• Decision Date: 26 June 2006
• Docket Number: No. 32855.,32855.
• Citation: 634 S.E.2d 389
• Parties: STATE of West Virginia Plaintiff Below, Appellee v. Gary INSCORE, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 389

634 S.E.2d 389

STATE of West Virginia Plaintiff Below, Appellee v. Gary INSCORE, Defendant Below, Appellant.

No. 32855.

Supreme Court of Appeals of West Virginia.

Submitted April 12, 2006.

Decided June 26, 2006.

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. "Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syllabus Point 1, Appalachian Power Co. v. State Tax Department of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995).

3. The Agreement on Detainers, W.Va. Code, 62-14-1[1971] is a congressionally-sanctioned interstate compact within the Compact Clause, U.S. Const., Art.1, § 10, cl. 3, and thus is a federal law subject to federal construction.

4. "When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute." Syllabus Point 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959).

5. A detainer based on a violation of probation is not included in "untried indictments, informations or complaints" within the meaning of the Agreement on Detainers, contained in W.Va.Code, 62-14-1[1971].

6. W.Va.Code, 62-3-21 [1959] has no application to probation revocation proceedings.

7. "In order to sustain and extend the jurisdictional authority to revoke probation subsequent to the expiration of the probationary period, the probationer must at least be charged with the probation violation prior to such expiration. Where no such charges are brought prior to the expiration of the probationary term, jurisdiction does not continue beyond the date of such expiration." Syllabus Point 2, Mangus v. McCarty, 188 W.Va. 563, 425 S.E.2d 239 (1992).

8. Where a defendant is incarcerated in another state and prosecuting authorities in West Virginia wish to proceed with probation revocation proceedings, it is a sufficient exercise of due diligence for the prosecuting attorney to invoke the detainer process and to cause one or more bench warrants to issue for the defendant's arrest as a means of notifying the defendant of the pendency of the petition to revoke probation.

9. Where a defendant is incarcerated in another state and the prosecuting authorities in West Virginia wish to proceed with probation revocation proceedings, it is a sufficient exercise of due diligence for the prosecuting attorney to bring the defendant before the West Virginia court for a probation revocation hearing within a reasonable time following the conclusion of his sentence in the asylum state.

Darrell V. McGraw, Jr., Attorney General, Kelley M. Goes, Assistant Attorney General, Charleston, for Appellee.

R. Thomas Czarnik, Esq., Princeton, for Appellant.

STARCHER, J.:

The appellant, Gary Inscore, plead guilty in West Virginia to three felony offenses. He was sentenced under the Youthful Offenders Act to the Anthony Correctional Center. After successfully completing the program at the Anthony Center, the appellant was placed on probation for three years. While on probation, the appellant was arrested in Virginia and ultimately sentenced to serve a three-year sentence in Virginia.

A West Virginia probation officer filed a petition to revoke appellant's probation, and the prosecuting attorney filed a detainer with the Virginia corrections authorities and subsequently caused several bench warrants to be issued for the appellant's arrest. No further action was taken until the appellant completed his term of confinement in Virginia.

By the time the appellant was brought before the West Virginia circuit court for a hearing on the petition to revoke probation, his West Virginia probation period had expired. Appellant moved for dismissal of the petition which was denied by the circuit court, and the original West Virginia sentence was imposed. It is from this order that the appellant appeals.

For the reasons stated herein, we affirm.

I. Facts & Background

On October 13, 1999, the appellant, Gary Inscore, was indicted by the Mercer County grand jury. One indictment contained thirteen counts that included breaking entering and petit larceny. A second indictment contained nine counts that included attempting to purchase goods using a false credit card, purchasing goods by the use of a false or fictitious credit card, and forgery of a credit card. On February 29, 2000, pursuant to a plea agreement, the appellant plead guilty to two counts of breaking and entering and one count of purchasing goods by use of a false or fictitious credit card.

On May 1, 2000, the appellant was sentenced to indeterminate sentences of not less than one year and not more than ten years on each of the breaking and entering charges, these sentences to be served consecutively. The appellant was also sentenced on the credit card charge for a term of not less than one year and not more than ten years to be served concurrently with the breaking and entering sentences.

Because the appellant was eligible to be sentenced under the Youthful Offender Act, the circuit court suspended the sentences and committed the appellant to the Anthony Correctional Center for at least six months.¹

On March 16, 2001, after successfully completing the Anthony Correctional Center program, the appellant was returned to the circuit court. The circuit court continued the appellant's suspended sentence, and placed the appellant on probation for three years. The terms of probation were the general conditions established by law. The general conditions under W.Va.Code, 62-12-9 [2001] include the condition "[t]hat the probationer may not, during the term of his or her probation, violate any criminal law of this or any other state or of the United States." Appellant's probation was to expire on March 16, 2004.²

On May 4, 2001, less than two months after the appellant was released on probation, appellant was arrested in Virginia on aggregate bad check and worthless check charges, both felonies. On June 11, 2002, the appellant was found guilty in a Virginia court and was sentenced to eight years of incarceration, of which five years were suspended.

On March 4, 2002, after the appellant was arrested in Virginia, but before he was convicted in Virginia, appellant's West Virginia probation officer petitioned the West Virginia circuit court to revoke appellant's West Virginia probation. The petition was filed prior to the date on which appellant's probation was set to expire. Multiple bench warrants were issued for the arrest of the appellant beginning March 1, 2002, and ending with a bench warrant being served on the appellant on September 7, 2004, upon his return to West Virginia.³ The orders entered by the circuit court for the issuance of bench warrants indicated on their face that they were being issued for the pending petition to revoke probation.

In addition to the bench warrants, on October 24, 2002, while the appellant was incarcerated in Virginia, the West Virginia prosecuting attorney requested that the Virginia Department of Corrections lodge a detainer against the appellant.⁴

On August 19, 2004, after completion of his Virginia sentence, the appellant waived extradition to appear at his West Virginia probation revocation hearing.

On September 7, 2004, after the appellant had been transported to West Virginia, he was arrested on a bench warrant issued pursuant to the probation revocation proceedings. On October 8, 2004, the circuit court conducted an evidentiary hearing on the petition to revoke probation. Appellant's counsel made a motion to dismiss the petition; the motion was denied. Appellant's probation was revoked and the original sentence was reinstated.

It is from the October 8, 2004 order that the appellant appeals.

The appellant asserts that the circuit court erred in denying appellant's motion to dismiss the petition to revoke appellant's probation which had expired seven months prior to the probation revocation hearing date.

II. Standard of Review

Before addressing the merits of the appellant's contentions, we examine the standard of review. We stated in Syllabus Point 1 of State v. Duke, 200 W.Va. 356, 489 S.E.2d 738 (1997):

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.

Since the instant case involves, in part, the interpretation of the Agreement on Detainers, W.Va.Code, 62-14-1 [1971], Syllabus Point 1 of Appalachian Power Co. v. State Tax Department, 195 W.Va. 573, 466 S.E.2d 424 (1995), which held that "[i]nterpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review" is also applicable.

Further, this Court has recognized that "[a]s the United States Supreme Court has stated, `[t]he Agreement [on Detainers] is a congressionally sanctioned interstate compact within the Compact Clause, U.S. Const., Art.1, § 10, cl. 3, and thus is a federal law subject to federal construction.'" State v. Somerlot, 209 W.Va. at 128, 544 S.E.2d at 55 (quoting ...